 Fire Scene Investigation: The Daubert Challenge
by Guy E. Burnette, Jr., Esquire
Contents
Introduction: Case History of Admission of Expert
Testimony Before Daubert
In 1923, the United States Circuit Court for the District of Columbia,
in the case of Frye v. United States, 54 App. D.C. 46, 293 F. 1013
(1923) established a threshold standard for the admission of expert testimony
in federal court cases. That standard imposed a requirement that the data
and methodology used by the expert in developing an opinion be of the kind
"generally accepted" by other practitioners within that particular
discipline. This standard of "general acceptance" was universally
adopted and subsequently used in both federal and state courts for over
70 years. It is still used today in a number of state court jurisdictions.
However, a new standard of admissibility in federal court cases was established
in 1993 which has since been adopted in a growing number of state court
systems. As this new standard has recently been applied to fire scene investigation,
it presents a significant challenge to the traditional admissibility of
fire origin and cause testimony.
In 1975, Congress enacted Federal Rule of Evidence 702, which was intended
to simplify and liberalize the admission of expert testimony. That rule
states:
- If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.
While Rule 702 was intended to broaden the general admissibility of expert
testimony and certainly did so, it did not directly address the legal standard
for measuring the foundation of an expert's conclusions. The Frye
standard of "general acceptance" continued to be used until the
Supreme Court issued it's opinion in Daubert v. Merrill-Dow Pharmaceuticals,
509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert
the Court ruled that the Frye test had been effectively abolished
by Rule 702 and the federal courts must now apply a new standard for the
admission of expert testimony.
History of the Daubert Case
Daubert was a case involving birth defects allegedly cause by
the mother's use of Bendectin, an anti-nausea drug, during her pregnancy.
Merrill-Dow moved for summary judgment in the case, claiming its drug had
not caused the injury to the child. In support of its motion, Merrill-Dow
submitted the affidavit of a physician and epidemiologist, Dr. Steven H.
Lamm, who was a respected authority in the area of health risks from exposure
to chemical substances. In his affidavit, Dr. Lamm stated that he had reviewed
30 published studies involving more than 130,000 patients and that none
of those studies had found Bendectin to cause injuries in fetuses. On that
basis, he concluded that the use of Bendectin during the first trimester
of pregnancy was not a risk factor for human birth defects. In response
to Merrill-Dow's motion, Daubert presented affidavits from eight
experts who, on the basis of various animal studies, claimed to have found
a link between Bendectin and birth defects.
The trial court granted Merrill-Dow's motion, finding that Daubert's
experts relied on evidence "not sufficiently established to have general
acceptance in the field to which it belongs." The Court found that
since there was a vast body of human epidemiological data in this area,
animal cell studies were not sufficient to raise a reasonable jury issue
regarding causation. The Court further found that the analysis by these
experts, attacking the epidemiological analyses cited by Dr. Lamm based
on "recalculations" of data in the previously published studies,
were inadmissible as those findings had not been published or subjected
to peer review so as to attain "general acceptance" in the field
of epidemiology.
The Court of Appeals affirmed the trial court's decision based upon the
Frye standard of general acceptance in the scientific community.
That court found it to be of particular significance that there existed
a massive amount of original published studies supporting the safety of
Bendectin, all of which had undergone scrutiny by the scientific community,
while the "reanalyses" by those suggesting the risks of Bendectin
were neither published nor subjected to peer review. Those findings were
considered novel scientific evidence or, as it has since become known, "junk
science." Under the Frye standard, such "junk science"
did not qualify as legally admissible expert testimony.
The case was appealed to the United States Supreme Court where the rulings
of the lower courts were overturned and a new standard of admissibility
was created. The Supreme Court, in addressing the facts of Daubert
relating to scientific evidence and expert testimony, first established
a two-step analysis to be used by the federal district courts in acting
as the "gatekeepers" of the introduction of expert testimony.
Those criteria are (1) that the evidence is relevant and (2) that it is
reliable. In determining the issue of whether the evidence is to be considered
reliable, the Court established a separate, non-exclusive four part test:
(1) can the theory or technique be tested, (2) has it been subjected to
peer review and publication, (3) is there a known or potential rate of error,
and (4) is there a level of general acceptance in that particular discipline's
community, similar to the former Frye test. Thus, the single issue
Frye test was expanded to include these new factors in evaluating
the quality - and resulting admissibility - of scientific evidence and expert
testimony.
The debate began immediately, with the dissenting opinion in the Daubert
decision written by Chief Justice Rehnquist warning of the pitfalls inevitably
created when the Supreme Court offers "general observations" in
its opinions. He noted that in Daubert there were 22 amicus
("friend of the court") briefs filed by interested groups and
individuals, many of which dealt with issues unrelated to the law, but rather
to defining "scientific knowledge", "the scientific method",
"scientific validity", and "peer review". Justice Rehnquist
also noted that:
- Questions arise simply from reading this part of the Court's opinion,
and countless more questions will surely arise when hundreds of district
judges try to apply its teaching to particular offers of expert testimony.
Does all of this dicta apply to an expert seeking to testify on the basis
of "technical or other specialized knowledge" - the other types
of expert knowledge to which Rule 702 applies - or are the "general
observations" limited only to "scientific knowledge"? What
is the difference between scientific knowledge and technical knowledge;
does Rule 702 actually contemplate that the phrase "scientific, technical,
or other specialized knowledge" be broken down into numerous subspecies
of expertise, or did its authors simply pick general descriptive language
covering the sort of expert testimony which courts have customarily received?
. . ..
- 509 U.S. at 600.
The state courts are divided on whether they will follow Daubert
or continue to use the Frye standard. Of the various state courts
that have decided to follow Daubert, all but two (Georgia and Connecticut)
have standards on expert testimony similar to federal Rule 702. Yet even
in those jurisdictions, a number have applied Daubert to certain
scientific evidence cases only. Other states, including several with evidence
rules analogous to Rule 702, have opted to still follow the Frye
standard.
The Scientific/Technical Debate
Within the fire investigation community there has been a long-standing
debate about the "science" of fire scene investigation which has
been heightened by the adoption of NFPA 921. One faction has argued that
origin and cause should be considered a scientific discipline and NFPA 921
should be applied as the standard for proper fire scene investigation using
the "scientific method." This basic premise, however, has been
used in court challenges to suggest that in order to render an opinion as
to the origin and cause of a fire, the witness must be able to testify that
each of those theories (data and methodology) used in the investigative
process were tested and subjected to the classic scientific process,
as required by the Daubert standard of reliability. The fire scene
investigation has been evaluated from the perspective of the fire scientist
for challenging the origin and cause of a fire under this approach, even
as NFPA 921 itself recognizes that fire investigation is both science and
art.
An opposing faction advocates the "technician" theory of origin
and cause investigation. Their position asserts that while training is certainly
based upon the various texts, such as NFPA 921, Kirk's Fire Investigation,
NFPA Fire Protection Handbook, etc., fire scene investigations involve
the utilization of those texts only for establishing the foundation of a
proper investigation. The ultimate expertise involved in the determination
of fire origin and cause is derived from experience and investigative technique.
Although the texts and reference materials are themselves properly subject
to the scientific method (gathering data, developing a hypothesis, testing
the hypothesis, challenging or defending the hypothesis, and rejecting or
confirming the hypothesis), the investigator cannot be limited to a rigid
"formula" of fire scene investigation. Rather, the ultimate test
of the validity of the investigator's conclusions is in the form of cross-examination
and opposing expert testimony at trial. It has been observed:
- Fire scene investigation has always been the subject of one's opinion.
We are constantly learning more about it every day and as long as the composition
and type of materials that constitute a fire load change, we will continue
to learn about the different effects they have on fire and explosion behavior.
There are no two fires exactly alike and each has different characteristics
that require man's physical senses to evaluate the totality of the circumstances
in and surrounding the fire. The investigator uses the "basics"
of fire behavior, dynamics and investigative experience to begin, then
beyond, must develop his thoughts and opinions based on what is visually
seen, smelled, heard and touched.
Basic C & O.101, Ron McCardle, Bureau of Fire and Arson Investigations,
Florida Division of State Fire Marshal.
Daubert and its progeny have not settled the issues involved in
this debate but have only intensified the debate and controversy over proper
fire scene methodologies and analysis.
Daubert's Application to "Non-Scientific
Technical and Other Specialized Knowledge"
A number of courts have addressed the question of whether it is appropriate
to apply Daubert to "non-scientific" experts. In Iacobelli
Construction, Inc. v. County of Monroe, 32 F. 3d 19 (2nd Cir. 1994),
the Second Circuit found that Daubert did not apply to what it considered
non-scientific evidence, only to "junk science".
The affidavits of Heuer and Eller do not present the kind of "junk
science" problem that Daubert meant to address. See Tamarin
v. Adam Caterers, Inc., 13 F.3d 51 (2d Cir. 1993) (Daubert "specifically
dealt with the admission of scientific evidence"). Rather, they rely
upon the type of methodology and data typically used and accepted in construction-litigation
cases. Given the inherently voluminous and highly technical nature of the
data in such cases, the parties in a construction-contract dispute usually
must retain experts to summarize and interpret that data.
Iacobelli at 25.
In Freeman v. Case Corp., 118 F.3d 1011 (4th Cir. 1997), a case
which considered the testimony of a mechanical engineer in a product liability
case involving the design of a tractor, the Fourth Circuit found that the
engineer's testimony was sufficient to support a jury finding where it was
based upon "his experience and training in tractor design in reviewing
numerous published materials, including papers by the Society of Agricultural
Engineers, extensive industry literature, various tractor specifications,
and trade journals before reaching his conclusions." The Court further
stated, at footnote 6, that "In cases like this one, where an expert
relies on his experience and training and not a particular methodology to
reach his conclusions, application of the Daubert [analysis] is unwarranted."
For that proposition, several cases from the 2nd , 5th, 6th, and 10th Circuits
were cited.
In U.S. v. Thomas, 74 F.3d 676 (6th Cir. 1996), the Sixth Circuit
upheld the district court in allowing a police officer to testify as an
expert about drug trafficking. The Court observed that although Daubert
dealt with scientific experts, the "gatekeeper" function of federal
judges applies to all types of expert testimony offered under Rule 702.
The Court held that to mean that the trial judge must find that the evidence
is both reliable and relevant. The Court went on to apply that test to Detective
Todd's testimony. However, it is clearly implicit in the case that the admission
of such technical testimony was not subject to the four-prong Daubert
analysis of reliability. At footnote 3, the Court said:
Todd had been a police officer for almost twenty-five years and had
worked for four and a half years in a special division focusing on drug
cases, particularly crack cocaine cases. He had attended several schools
relating to drug investigations and had been involved in executing over
one thousand search warrants, most of which related to crack cocaine. Todd
had also been involved in more than one thousand controlled buys of drugs
and had previously testified as an expert witness in this area numerous
times.
Thomas at 681.
The Seventh Circuit, in Roback v. V.I.P. Transport, Inc. (90 F.3d
1207 (7th Cir. 1996) overturned the trial court's exclusion of an expert's
testimony which had been based on several grounds: the testimony lacked
a scientific basis, the witness was not a professional engineer, he could
not identify the source of the malfunction he observed and his apparatus
(a computerized device used to gather data on the performance of various
systems within an automobile or truck) had not been subjected to meaningful
peer review. In doing so, the Court said:
Documenting the malfunction of a vehicle by gathering and compiling
data during a test run is hardly a novel methodology. In a basic sense,
Rosenbluth was no different than an eyewitness who may have observed Martin's
truck malfunction on other occasions. Arguably, however, his testimony
would have been more reliable because his observations were quantified.
The only thing apparently unique to Rosenbluth's approach was the DATAQ,
in the sense that he put together the hardware and designed the software,
and (with the exception of a doctoral student) only he had ever used them.
But Rosenbluth used standard components to assemble the DATAQ, and he certainly
could have been interrogated about the way in which his software worked.
His data were subject to examination and independent verification. We see
no way in which Rosenbluth's testimony did not qualify for admission under
Rule 702.
Roback at 1215-16.
The Southern District Court of Alabama, however, in Carmichael v.
Samyang Tires, Inc., 923 F. Supp. 1514 (S.D.Ala. 1996), when asked to
exclude a technical expert's testimony concerning a manufacturing or design
defect in a tire, applied the four-prong reliability test and refused to
find that Daubert applied only to scientific evidence. In doing so,
Judge Butler said:
This argument is meritless. While the Supreme Court's ruling in Daubert
was specifically directed at the admissibility of certain scientific evidence,
the plaintiffs have not directed the Court's attention to a single case
in which a court has refused to apply Daubert to a "technical
analysis". On the contrary, the Daubert standard has been routinely
utilized by lower courts in assessing the admissibility of "technical
analyses" similar to that at issue in the present case. See, e.g.,
Strickland v. Royal Lubricant Co., 911 F. Supp. 1460 (M.D.Ala. 1995)
(using Daubert test to assess admissibility of mechanical engineer
testimony regarding faulty respirator); Dickerson v. Cushman, Inc.,
909 F. Supp. 1467, 1472 (M.D. Ala. 1995) (mechanical engineer testimony
regarding safe design of mobile tanks); Bowers v. Northern Telecom,
Inc., 905 F. Supp. 1004 (N.D.Fla. 1995) (ergonomist testimony concerning
computer keyboard design); Byrnes v. Honda Motor Co. Ltd., 887 F.
Supp. 279, 282 (S.D.Fla. 1994) (testimony concerning proper safety equipment
on motorcycle); Williamson v. General Motors Corp., 1994 WL 660649,
*4 (N.D.Ga., Sept. 30, 1994) (mechanical engineer testimony concerning
engine drag theory of automobile accident). Thus, the distinction urged
upon the Court by plaintiffs has not been recognized by the lower courts
in this Circuit.
. . .
More to the point, the technical/scientific distinction has been impliedly
rejected by the Eleventh Circuit. In United States v. Lee, 25 F.3d
997 (11th Cir.1994), the Eleventh Circuit remanded with instructions for
the district court to consider whether the results of "specialized,
technical diagnostic machinery" comported with Daubert. Id.
At 998. In particular, the Lee court held that:
"[C]ourts do not distinguish between the standards controlling
admission of evidence from experts and evidence from machines . . .. Daubert
applies not only to testimony about scientific concepts but also to testimony
about the actual applications of those concepts." Id. at 988-99.
Carmichael at 1522.
The court went on to explain that even if the testimony is considered
technical, it is based on scientific theory and "Lee requires this
Court to consider the legitimacy of both the scientific foundation and the
actual application of that foundation employed by [the expert]." Thus,
the Carmichael decision seems to blur the distinction between scientific
and technical evidence in applying a Daubert analysis. This only
serves to further complicate the debate over the meaning of Daubert
in admitting expert testimony.
The Joiner Case--A Clarificaton of Daubert
As courts from various jurisdictions are still trying to shed light on
the full meaning of Daubert, the United States Supreme Court recently
took up the issue again and provided some guidance and insights. In General
Electric Company v. Joiner, 66 U.S.L.W. 4036 (1997) the Supreme court
reviewed a case where the trial judge had entered summary judgment in favor
of the defendant in a lawsuit alleging the plaintiff had contracted cancer
as the result of exposure to PCB chemicals. The scientific evidence in support
of the plaintiff's claim was derived from laboratory studies of mice which
had been injected with massive doses of PCB chemicals and certain limited
epidemiological studies suggesting a causal connection between PCB chemicals
and cancer in humans. The trial judge ruled the evidence offered by the
plaintiff failed to satisfy the requirements of Daubert, describing
the evidence offered by the plaintiff's experts as "subjective belief
or unsupported speculation." It was noted Joiner failed to present
any credible scientific evidence of a direct causal connection between exposure
to PCB chemicals and cancer.
On appeal, the ruling was reversed by the Eleventh Circuit which held
the evidence should have been presented to the jury for a decision. The
appellate court observed the Federal Rules of Evidence favor the admissibility
of expert testimony as a general rule. Further, the appellate court applied
a more stringent standard of review of the trial court's ruling, since the
ruling was "outcome determinative" (i.e., resolved the entire
case).
The United States Supreme Court overturned the decision of the Eleventh
Circuit and reinstated the ruling of the trial court. In doing so, the Supreme
Court reiterated and clarified some of the points made in the Daubert
decision. First, the role of the trial judge as "gatekeeper" was
reaffirmed. In particular, the trial judge was not only allowed to draw
his own conclusions about the weight of evidence offered by an expert witness,
but was expected to do so. It was noted this had been a function of the
trial judge long before the Daubert decision itself. Since this was
a proper role of the trial judge, the decision to accept or reject expert
testimony would not be subjected to a more stringent standard of review
on appeal. The decision of the trial judge would be given deference on appeal
and it would require showing an "abuse of discretion" for the
decision of the trial judge to be overturned.
The Supreme Court held the application of Daubert to expert testimony
is not merely a review and approval of the methodology employed. It includes
scrutiny of the ultimate conclusions reached by the expert witness based
upon the methodologies and data employed to reach those conclusions.
Notably, the Supreme Court did not clarify the controversy over scientific
evidence versus technical evidence. The Supreme Court did not address the
issue in Joiner because it was clearly a "scientific evidence"
case. That remains a major part of the controversy in construing Daubert
and the admissibility of expert testimony. The Benfield decision
did directly address this issue and demonstrated a new perspective on this
critical aspect of fire investigation.
Daubert and the Fire Investigator
The debate over the application of Daubert to fire scene investigations
has intensified at the point of deciding whether origin and cause determination
is to be considered scientific evidence or non-scientific technical evidence.
The advocates of the strict scientific approach bristle at the suggestion
fire scene investigation is in any way "non-scientific", pointing
to the many misconceptions previously used by fire investigators (spalling,
v-patterns, etc.), which were only exposed by the fire scientists in recent
years. They advocate the use of Daubert in fire scene analysis as
the only means of preventing a return to the improper fire scene methodologies
employed by unqualified investigators lacking proper scientific training.
In contrast, the "technicians" argue fire scene investigation
has never been a pure science like chemistry or physics even as it employs
elements of both disciplines. The term "non-scientific" in the
context of Daubert is a legal distinction, rather than a scientific
one. It is not to say fire investigation is "unscientific" or
devoid of any application of scientific principles. Instead, it is a recognition
of the objective and subjective components which form a part of every fire
scene investigation, more precisely the human component in examining,
analyzing and, ultimately, interpreting fire scene evidence to reach
a conclusion about the fire's origin and cause.
Early on in Daubert's history, the Tenth Circuit directly addressed the
testimony of a fire investigator in an arson case. In United States v.
Markum, 4 F.3d 891 (10th Cir. 1993) the Court found the admission of
a Fire Chief's testimony that a fire was the result of arson to be proper
based primarily on his extensive experience in fire investigations. There
the Court said:
. . . . Experience alone can qualify a witness to give expert testimony.
See Farner v. Paccar, Inc., 562 F. 2d 518, 528-29 (8th Cir. 1977);
Cunningham v. Gans, 501 F.2d 496, 500 (2nd Cir. 1974).
Chief Pearson worked as a firefighter and Fire Chief for 29 years. In
addition to observing and extinguishing fires throughout that period, he
attended arson schools and received arson investigation training. The trial
court found that Chief Pearson possessed the experience and training necessary
to testify as an expert on the issue whether the second fire was a natural
rekindling of the first fire or was deliberately set. That finding was
not clearly erroneous.
Markum at 896.
Another case which directly addressed the application of Daubert
to fire investigation was Polizzi Meats, Inc. v. Aetna Life and Casualty,
931 F. Supp. 328 (D.N.J. 1996). In that case, the Federal District Court
of New Jersey said:
PMI's counsel argues that because of a lack of "scientific proof"
of the fire's causation, none of Aetna's witnesses may testify at trial.
This astounding contention is based on a seriously flawed reading of the
United States Supreme Court's decision in Daubert v. Merrill-Dow Pharmaceuticals,
Inc. Daubert addresses the standards to be applied by a trial
judge when faced with a proffer of expert scientific testimony based upon
a novel theory or methodology. Nothing in Daubert suggests that
trial judges should exclude otherwise relevant testimony of police and
fire investigators on the issues of the origins and causes of fires.
Polizzi at 336-37. (Citations omitted)
These two decisions were the only reported cases considering Daubert
in the specific context of fire investigation, until the Eleventh Circuit
announced its decision in a case which has taken an entirely different view
on the process of fire scene investigation.
The Benfield Case
In the recently decided case of Michigan Miller's Mutual Insurance
Company v. Janelle R. Benfield, Case Number 93-1283, United States Court
of Appeals for the Eleventh Circuit, the Daubert analysis was applied
to a fire scene investigation. This case has attracted great attention within
the fire investigation community and has become a focal point of the Daubert
controversy.
In January, 1996 the Benfield case was tried in federal district court
in Tampa. The case involved a house fire in which the insurance company,
Michigan Miller's Mutual, refused to pay on the policy based, in part, upon
the fire being incendiary and the involvement of an insured party in setting
the fire. As a part of the insurer's case, a fire investigator with over
thirty years experience in fire investigations was called as an expert witness
to present his opinion of the origin and cause of the fire. He testified
the fire was started on top of the dining room table where some clothing,
papers and ordinary combustibles had been piled together. He examined the
fire scene primarily by visual observation and concluded the fire was incendiary
based upon the absence of any evidence of an accidental cause, along with
other evidence and factors noted at the scene. After cross-examining the
investigator, the plaintiff moved to exclude the testimony under Daubert
and the trial court agreed. In the trial court's ruling striking the expert's
testimony, the judge specifically found that the witness:
. . . cites no scientific theory, applies no scientific method. He relies
on his experience. He makes no scientific tests or analyses. He does not
list the possible causes, including arson, and then using scientific methods
exclude all except arson. He says no source or origin can be found on his
personal visual examination and, therefore, the source and origin must
be arson. There is no question but that the conclusion is one to which
Daubert applies, a conclusion based on the absence of accepted scientific
method. . . .
And finally, it must be noted that [his] conclusion was not based on
a scientific examination of the remains, but only on his failure to be
able to determine a cause and origin from his unscientific examination.
This testimony is woefully inadequate under Daubert principles and
pre-Daubert principles, and his testimony will be stricken and the
jury instructed to disregard the same.
Daubert Motion hearing transcript at 124-26.
Interestingly, the Court in Benfield initially found the expert to be
qualified to render opinions in the area of origin and cause of fires and
allowed him to testify, based on his qualifications and credentials as a
fire investigator. However, the judge struck the expert's testimony after
it was presented based upon his methodologies in conducting the particular
fire scene investigation in that case. Having stricken the expert's testimony,
the judge then found that, as a matter of law, arson had not been proved
by Michigan Miller's and directed a verdict against them on the arson issue.
The evidence was undisputed that the area of origin was on top of the
dining room table. Therefore, the only issue was the cause of the fire.
The expert testified that while he was conducting his investigation, he
spoke with Ms. Benfield who told him that when she was last in the house
before the fire there was a hurricane lamp and a half-full bottle of lamp
oil on the top of the table. He further testified that he examined photographs
taken by the fire department before the scene was disturbed and observed
an empty, undamaged bottle of lamp oil lying on the floor with the cap removed
(also undamaged), indicating that it had been opened and moved from the
table prior to the setting of the fire. He also explained his observations
at the fire scene which enabled him to rule out all possible accidental
causes. He concluded that the fire was incendiary, using the "elimination
method" long recognized as a valid method of determining fire origin
and cause. He could not, however, determine the source of ignition for the
fire. More importantly, he did not "scientifically document" his
findings on various points and primarily relied upon his 30 years experience
as a fire investigator, even as he held himself out as an expert in fire
science adhering to the scientific method in conducting his investigation.
On cross-examination by Ms. Benfield's attorney, the expert was asked
to define the scientific method and was asked the "scientific basis"
for the taking of certain photographs apparently unrelated to the fire itself.
The cross-examination continued by attacking each piece of evidence used
by the expert that could not be said to be scientifically objective and
scientifically verified. The investigator's determination of the smoldering
nature of the fire and the time he estimated it burned before being discovered
were discredited as not being based upon scientific calculations of heat
release rate and fire spread, but merely the investigator's observations
of the smoke damage and other physical evidence. The Court noted those points
from the cross-examination in finding that the expert's methodology was
not in conformity with the scientific method, relying instead almost exclusively
on the expert's own training and experience, which it held to be inadmissible
under Daubert.
On May 4, 1998 the Eleventh Circuit issued its ruling in the Benfield
case. Contrary to the Tenth Circuit decision in Markum and the Federal
District case in Polizzi Meats, the court found the investigator's
fire scene analysis to be subject to the Daubert test of reliability.
In reaching this conclusion, the court noted the investigator in Benfield
held himself out as an expert in the area of "fire science" and
claimed he had complied with the "scientific method" under NFPA
921. Thus, by his own admission he was engaged in a "scientific process"
which the court held to be subject to Daubert.
Under the Daubert test of reliability, the Appeals court upheld
the decision of the trial judge to strike his testimony. Noting it is a
matter of the trial court's discretion to admit expert testimony, such a
decision will be affirmed on appeal absent a showing of an "abuse of
discretion" or that the decision was "manifestly erroneous."
Under such a daunting standard, the trial judge is effectively given the
"final word" on whether or not both the qualifications and findings
of an expert witness will be considered reliable enough to be presented
to the jury. It is not simply a matter of having the power to decide if
a witness is qualified to testify as an expert, the substance of the expert's
testimony and his professional conclusions will first have to meet the approval
of the trial judge before they can ever be presented to the jury. The trial
judge acting as "gatekeeper" can summarily reject the findings
and conclusions of an expert witness, preempting the jury from making that
decision. In the Benfield decision, various scientifically unsupported
and scientifically undocumented conclusions of the investigator were cited
as grounds for the determination that his observations and findings failed
the Daubert reliability test. A chandelier hanging over the dining
room table where the fire started showed no signs of having caused the fire,
but the investigator had not conducted any tests or examinations to scientifically
eliminate it as a potential cause of the fire. His observations alone were
held inadequate. Similarly, his opinion the fire had likely been accelerated
with the lamp oil contained in the bottle was rejected under Daubert,
since he could not scientifically prove there had been oil in the bottle
before the fire and he had not taken any samples from the fire debris to
scientifically prove its presence or absence at the time the fire was ignited.
These and other observations of the investigator were held to demonstrate
there was no scientific basis for his conclusions, only his personal
opinion from experience in investigating other fires.
It was not that the investigator was found to be "wrong" in
the Benfield case. Indeed, there was never any evidence of an accidental
cause of the fire. Ironically, although the Appeals Court upheld the decision
of the trial judge to strike the testimony of the insurance investigator,
it granted a new trial for Michigan Millers on the arson defense. The Appeals
Court felt a prima facie case of arson had been shown at trial through
the fire department investigator who initially classified the fire only
as "suspicious" (with virtually no challenge to the scientific
documentation of his opinion) and the many incriminating circumstances surrounding
the fire itself. Those circumstances included the fact Ms. Benfield claimed
she had not locked the deadbolts when she left the house, yet the deadbolts
were locked when she returned to discover the fire. Ms. Benfield and her
daughter (who had been out of town) had the only keys to those locks. Her
assertion that the fire was extinguished by her boyfriend with a garden
hose was refuted by the observations of the responding firefighters. Her
insurance claim appeared to be significantly inflated. She had tried to
sell the house and could not do so. She was trying to convince her estranged
husband to transfer the house to her, but could not do so. Ms. Benfield
had given conflicting and contradictory accounts of her activities immediately
before the fire. In listing all of these reasons, the Appeals Court found
there was compelling evidence of arson even as it discredited the findings
of the insurance investigator that the fire was incendiary. The critical
point in the case appears to be the distinction between the insurance investigator
testifying as an expert in fire science and the fire department representative
testifying as an expert in fire investigation.
Conclusion
The Benfield decision represents a conflict between the federal appellate
courts in applying the Daubert standard to fire scene analysis. The
conflict may be heightened as other courts consider this issue in future
cases and will only be conclusively resolved when (and if) the Supreme Court
confronts the role of Daubert in the field of fire investigation.
Until that happens, fire investigators may face a formidable challenge in
presenting their findings in the courtroom when held to the requirements
imposed by the Benfield decision.
The Daubert requirement applied in the Benfield case results
from the context of the investigation when presented in court. Where an
investigator testifies as a fire scientist under the scientific method of
NFPA 921, in the 11th Circuit the investigator will be required to scientifically
document and verify the investigative process employed and the conclusions
reached as a result of the investigation. Where the testimony is presented
as a fire investigator relying upon investigative training and experience,
even though using a fire science foundation to conduct the investigation,
the Daubert standard will likely not apply. It is a distinction which
can impact the admissibility of the fire scene investigation, depending
upon how it is presented at trial.
The Benfield case is significant, yet it is not a decision of
the Supreme Court and it has not been followed by any other reported decisions
of other courts. Whether it is an isolated decision of the 11th Circuit
based upon the specific facts of that case or representative of a new direction
for courts in fire investigation cases remains to be seen. It is clear,
however, that investigators must be aware of the need to properly document
their findings and present them in court in a logical, systematic and scientifically
valid manner to avoid a Daubert challenge. Only then can an investigator
be assured the results and conclusions of an investigation will be considered
by a jury to establish a verdict based upon the true facts of a case.
 Reprinted with permission from the author.
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