 Documentation of the Fire Scene: A Legal Perspective
by Guy E. Burnette, Jr., Esquire
It goes without saying, every arson case begins at the fire scene. Unfortunately,
many arson cases end at the fire scene, as well. Unless the fire scene is
properly documented, a case can be lost before it ever starts. A coordinated
effort between fire suppression personnel and fire investigators is an essential
first step in building an arson case. Proper documentation of a fire scene
requires a systematic approach on the part of both firefighters and fire
investigators. More importantly, it requires an understanding and recognition
of the documentation needed to not only establish the incendiary cause of
the fire, but to develop the connecting evidence which will identify and
prove the person responsible for setting the fire.
Contents
- Documenting the discovery and report of the fire
- Documenting the conditions at the fire scene
- Documenting the scene and evidence
- Documenting the fire scene at trial
- Conclusion
Documenting the Discovery and Report of the Fire
Some of the most important evidence in an arson case is derived from
the circumstances of the fire's discovery and initial report. These facts
need to be established and properly documented at the very outset of the
investigation.
A. The Fire Report
All of the details of the initial fire report need to be established.
If possible, the person calling in the fire report should be identified.
The precise time of the initial report must be documented. Whenever possible,
a copy of the tape recording of the report should be obtained from the appropriate
agency. Care must be taken to ensure that all of the calls reporting the
fire are properly documented, not just the first one. Where a fire was reported
to several different agencies, information must be obtained from all of
those agencies. The most important information to be documented is the call-in
time of the fire reports, from the first one to the last one. The dispatch
time, arrival time and identity of all responding units should also be documented,
including any engine companies called in for support or through mutual aid.
B. Fire Scene Witnesses
Persons who discovered the fire or who were in the immediate vicinity
at the time will often remain at the fire scene through extinguishment and
overhaul. It is imperative to identify and speak with these individuals
while they are still there. Their observations about the conditions at the
time the fire was discovered and the progression of the fire as it burned
can provide critical information for the fire investigator. Their observations
may provide insights into the fire's origin and cause. They may have noticed
unusual or suspicious activity immediately preceding the discovery of the
fire. Many times these witnesses do not live in the area, but just happened
to be passing by or driving through the area. Unless they are identified
and interviewed while they are still at the fire scene, they may never be
found later. Indeed, the arsonist himself may be there at the fire scene.
Some departments have established a standard procedure of recording the
tag number and description of every vehicle in the area of the fire incident
at the time of initial response. Many fire departments and fire investigation
agencies now videotape fire scenes. Witnesses and neighbors may decide to
videotape the fire out of their own curiosity. These videotapes can be invaluable
evidence for the investigator and should be secured.
Documenting the Conditions at the Fire Scene
A. Officer in charge
The officer in charge of the fire scene must be identified and interviewed.
The weather conditions at the time of arrival and throughout the period
of suppression should be noted. Fire conditions and the location of areas
of active fire involvement from arrival time of the first units through
extinguishment of the fire should be carefully recorded in detail.
B. Security at the fire scene
The security of a building, structure or vehicle at the time of first
arrival at the fire scene must be precisely documented. This can be a critical
piece of evidence in any arson case. The location and condition of all points
of entry should be documented. This must be verified with the particular
firefighters who actually observed and checked the points of entry, including
all doors, windows or other openings, and will be able to provide first-hand
testimony at trial. It is not enough to simply speak with the officer in
charge about what was reported back to him by the firefighters. Each and
every point of entry must be covered with the firefighters having actual
knowledge of the conditions of those particular points of entry.
This may be contained in the reports of the responding fire department.
However, typically it is not. Contact must be made with the firefighters
who have first-hand knowledge of the security of the building while their
recollection of events is still fresh. As a practical matter, this must
be done within the first forty-eight hours after the fire.
In addition to the testimony of these witnesses, corroborating physical
evidence must be documented. Close-up photographs of all doors and windows,
and their locking mechanisms, must be taken. They must be closely inspected
for any signs of forcible entry or tampering. Glass fragments should be
examined for indications of heat crazing, carbon deposits or fracture striations.
The location of glass fragments inside or outside the doors and windows
must be determined and photographed.
C. Fire suppression and extinguishment
Critical information about a fire can be derived from the circumstances
of its extinguishment and suppression. The equipment used during suppression
and overhaul should be identified and recorded. The number and size of hose
lines used, and the nozzles and patterns utilized, will be important information.
The observations of the line firefighters who entered the building will
serve to verify the conclusions of the fire investigator. Information about
floor level burning, multiple areas of fire origin, the description and
locations of the flames and smoke, incidents of "flashback" and
"flashover", fire load conditions and the location of furnishings,
equipment, inventory, and other items will be invaluable testimony at the
time of trial. Once again, this can only be properly documented through
the actual firefighters who made these observations and it must be established
immediately after the fire.
D. Post-extinguishment conditions at the fire
scene
Ideally, the fire investigator will be called out to the scene immediately
after extinguishment and prior to overhaul. If not, the fire investigator
will have to confirm there have been no significant changes in the fire
scene since extinguishment or during overhaul. If there have been any changes
to the fire scene, such as the removal of property from inside the building
during overhaul, this must be ascertained and noted. Only then can a proper
fire scene investigation begin.
Even prior to the analysis of the fire's origin and cause, preliminary
observations must be made about the fire scene. Apart from the obvious fire
damage conditions, the fire investigator should note the existence and condition
of property at the fire scene. In particular, the location and extent of
fire and smoke damage (or lack of damage) to major items in the building
should be recorded. In a commercial property, the type and amount of equipment
and inventory on hand at the time of the fire should be catalogued. It should
be closely examined to determine if there are any unusual aspects to the
equipment and inventory, such as unexpectedly high or low amounts of inventory
on hand at a business, obsolete or outdated inventory and equipment, empty
containers or vacant storage areas where property would be expected to be
found, disconnected or removed equipment and fixtures, recently delivered
merchandise which has not been unpacked or put on display, display items
and merchandise (especially food items) left on display which should have
been put away at the close of business, and any other such observations.
Unusual or unexplained conditions at the time of the fire can be compelling
evidence of arson. They should be noted, recorded and documented with photographs
whenever they are found at a fire scene.
Documenting the Scene and Evidence
A discussion of fire scene analysis is better left for one trained and
qualified in the subject. However, from the legal perspective as a front-row
observer of cases won and lost, certain lessons have been learned which
bear repeating here in the hope these lessons - good and bad - will be learned
in the classroom and not in the courtroom.
A. A systematic and technically sound investigation
It goes without saying, the fire scene investigation should be properly
conducted. However, this is more than simply doing a thorough job. It requires
an awareness and understanding of the recognized procedures for a fire scene
investigation in conformity with scientifically established procedures.
More to the point, it requires an adherence to NFPA 921: Guide for Fire
and Explosion Investigations.
Since the adoption of NFPA 921 in February of 1992, it has become a controversial
document. While it was intended to serve as a "guideline" for
the investigation of fire and explosion incidents, it has become much more
than a mere guideline. In practical effect, it has become the "national
standard" for fire and explosion investigations. It not only outlines
the proper steps in an investigation, it challenges many of the long-standing
principles of fire scene analysis. The interpretation of spalling, pour
patterns, v-patterns, rate of char analysis, flashover and a host of other
fire scene phenomena have been subjected to intense scrutiny under objective
standards of scientific verification. The fire investigator who fails to
follow the "guidelines" of NFPA 921 or is unfamiliar with this
document will find himself challenged not only on the results of his investigation,
but on his basic methodology and practice. The only way to avoid a confrontation
under NFPA 921 is to follow its recommended practice and procedures or be
ready to justify any deviation from its methodology. Regardless of whether
you agree with this document, you must be prepared to acknowledge it.
B. Examining the entire fire scene
One of the most common mistakes made in the investigation of fire scenes
is the failure to examine and document the entire scene. At trial, the fire
investigator will always be accused of having jumped to conclusions without
considering all of the evidence. Where the entire fire scene has not been
thoroughly examined and, more importantly, thoroughly documented with photographs,
the investigator is vulnerable to those accusations. Unlike the defendant
who is afforded the right to remain silent at trial, the investigator must
answer for what he did or did not do. A reasonable doubt can easily be raised
from something which was not done or a question which cannot be answered.
Certainly, any total loss fire scene should always be investigated from
top to bottom, front to back. Even a partial loss fire scene should be thoroughly
examined, despite the fact undamaged areas may have no direct bearing on
the cause of the fire, if only to be able to show the jury that the investigation
was objective and comprehensive. At trial, the investigator will realize
it was well worth the effort.
C. Photographic documentation
There has never been a case which has gone to trial with too many photographs.
However, there have been many cases which have gone to trial with too few.
Cases have been lost because something originally considered insignificant
or meaningless was undocumented. Almost by definition, it becomes significant
when it is undocumented. Moreover, refuting a challenge to an investigator's
theory of the fire takes more than simply saying so. It must be demonstrated
and shown to the jury. The most convincing way to do so is with documentary
proof in the form of a photograph. For particularly dramatic effect, composite
panorama photographs and overhead or aerial photographs should be considered.
D. Fire scene diagrams
A detailed and accurate fire scene diagram is an indispensable component
of a proper fire scene investigation. While most fire investigators are
not trained draftsmen, a fire scene diagram does not have to resemble an
architectural blueprint to be effective. However, it does need to accurately
depict the layout and configuration of the structure. It must contain all
of the rooms in the structure and the factors which would affect the fire's
travel and progression, such as walls, hallways, stairways, attics, crawl
spaces and the like. Many computer software programs now offer drafting
capabilities and make the job much easier for an investigator. Even without
the benefit of a computer program, however, an investigator can draw a fire
scene diagram suitable for use at trial with just a little time and effort.
It is time well spent, as the fire scene diagram will be one of the most
important demonstrative exhibits at trial. The use of overlays and enlarged
areas within the diagrams will make them even more effective exhibits for
the jury.
Documenting the Fire Scene at Trial
Without proper documentation of the fire scene at the initial stages
of the investigation, the case may already be lost. Even a properly documented
fire scene must still be properly presented at trial, however, and this
requires the effective use of demonstrative evidence to prove the point.
The demonstrative evidence used in an arson trial can take several forms.
A. Photographs, slides and videos
Photographic documentation of the fire scene is essential to a proper
investigation and an effective trial presentation. The method of photographic
documentation may include print photographs, slides, film videos or a combination
of these formats.
1. Photographs
Print photographs remain the most widely used form of documentation.
They offer the advantage of capturing a critical aspect of the fire scene
such as a significant burn pattern or area of origin which can be used as
a reference point for extensive testimony at trial. Key photographs can
also be used by the attorney in closing argument with dramatic effect. They
will be sent in to the jury room during deliberations as well, for review
by the jury as they decide their verdict in the case. This can be one of
the most important uses of photographic evidence at trial.
To be effectively presented at trial, photographs must be enlarged and
mounted, then labeled and numbered in the proper order. Photographs should
be enlarged to at least 8x10 or 10x12. Critical photographs can be enlarged
to poster size. Making enlargements of photographs is unquestionably expensive.
However, regular size 3x5 prints are simply useless at trial. Much of the
testimony explaining the photographs will take place in front of the jury
box where the entire jury panel will have to see the photographs as the
testimony explains them. It is impossible for jurors on the back row or
seated at the end of the jury box to see 3x5 photographs with any meaningful
understanding of them. More importantly, while a burn pattern may be readily
discernable to a trained investigator, the typical juror will have a hard
time recognizing a burn pattern in a photograph even as it is pointed out
unless the photograph is enlarged so that it clearly shows the burn pattern
or whatever else may be important in that picture.
In preparing the photographs for use at trial, they must be properly
labeled and numbered in the sequence corresponding to the testimony of the
investigator as he explains the fire scene. In order to put the photographs
in the proper order, the investigator must have prepared his testimony about
the fire scene to track the order of the photographs.
2. Slides
The use of slides at trial can provide an immediate advantage in terms
of enlarging the fire scene photographs well beyond the size of ordinary
8x10 or 10x12 print photographs. For the reasons previously stated, this
can be used to show the jury the fire scene and all of the important evidence
at the scene so that it can be clearly recognized by the jurors. Certainly,
this is a far less expensive way of providing a photographic enlargement
of the fire scene. However, slides should always be used in conjunction
with photographic enlargements and never in place of them. They cannot be
used effectively by the trial attorney in closing argument and the jury
will be unable to view them during the deliberation process. While slides
can be used to demonstrate the fire scene evidence to the jury during the
investigator's testimony, they should never be substituted for photographic
print enlargements.
3. Videos
The use of videos or film footage of a fire scene can be particularly
effective during trial. It is a much more life-like means of showing the
fire scene to the jury and gives a much better perspective of the overall
fire scene as the video or film moves throughout the scene. However, just
as with slides, fire scene videos or films should never take the place of
photographs. It is difficult to "freeze" a video or film to demonstrate
an important part of the fire scene and it is impractical to use videos
or films during closing arguments. Similarly, most trial judges will not
permit the jury to take the films into the jury room for viewing during
deliberations and even when they are allowed to do so, as a practical matter
the jury may not pay as close attention to the video or film as an enlarged
photographic print.
Of course, video or film footage of the fire in progress is invaluable
evidence. Likewise, video or film footage taken immediately after the fire
is extinguished as the investigation begins can have a dramatic impact at
trial. Where such video or film is available, it should always be used at
trial.
B. Scale models
The construction of scale models represents one of the most persuasive
ways of documenting the fire scene for use at trial. A scale model is a
dramatic means of taking the jury to the fire scene right there in the courtroom.
It demonstrates the construction and layout of the structure before the
fire in a way no photograph or diagram can possibly do. It enables the investigator
to supplement his testimony with a graphic representation of the conditions
and fire load which contributed to the fire's path and progression. It is
a costly and time-consuming project to construct a scale model. It can cost
thousands of dollars to have one built by a consulting expert. However,
where the resources are available to have a scale model constructed for
use at trial, it can provide invaluable benefit to the investigator testifying
about the fire's origin and cause.
C. Computer graphic simulations
As computer technology has continued to evolve, new applications have
been developed for use in a number of areas, including the courtroom. The
computer graphic simulation represents the most advanced form of demonstrative
evidence ever conceived and its value as a trial exhibit has been increasingly
recognized. In the courtroom, this is truly the state-of-the-art.
A computer graphic simulation is essentially a computer-generated animation
which can recreate any event in animated form. It can also be used to illustrate
hypothetical events by modifying the actual facts and circumstances in any
situation to predict and demonstrate what would have happened under those
circumstances. In the context of arson cases, a computer graphic simulation
can recreate the complete progression of a fire from ignition through overhaul
in a highly realistic animated format similar to a hollywood special effects
production. A jury can watch as testimony about a fire's origin and cause
literally comes to life through a computer graphic simulation, just as if
the entire fire incident had been captured on film. At the same time, opposing
theories of the fire's origin and cause can be tested through a computer
graphic simulation to disprove those theories convincingly. As you might
imagine, the impact of such evidence on a jury is powerful and persuasive.
A computer graphic simulation is an expensive proposition. The cost of
creating one can easily exceed twenty thousand dollars ($20,000) or more.
It is cost prohibitive for all but the most well-funded party willing to
make the financial investment in the case. For those who can afford it,
a computer graphic simulation represents the ultimate form of demonstrative
evidence.
4. Computer modeling
Another use of computer technology is in the field of computer modeling
of fires. This has become an increasingly common tool used in the investigation
of fires and can have significant impact as demonstrative evidence at trial.
Computer modeling is essentially a series of mathematical calculations
using formulas developed from research in this area. All of the known data
about a particular fire will be used in making the calculations. The available
fire load, heat release rate of all combustible and flammable materials,
the volume of the room or compartment where the fire originated, the construction
materials and composition of the structure, the volume of air and air exchange
rate, relevant time frames and all other factors about the fire will be
included in the calculations. When all of this data is applied to the formulas
and the calculations are made, it will provide information about how the
fire should have initiated, developed and spread under those circumstances.
This information will be compared to the actual effects of the fire to see
if it is consistent with the way the fire should have burned. Variables
can be introduced to the calculations to test the effect of other factors
which may be suspected to have been present, such as accelerants used to
set the fire. When those variables are included in the calculations, the
results will again be compared to the actual evidence of the fire to see
if those variables make the actual damage more consistent with the calculated
damage using the variables. Stated another way, it will show if the fire
can only be explained by the presence of other factors such as accelerants
which are suspected to have been used in the fire. In the end, it can show
if there is a "mathematical impossibility" the fire occurred as
reported or claimed by the other side of the case. This information can
provide compelling support for the conclusions of the investigator who determined
the origin and cause of the fire from the examination of the fire scene.
It should be noted there are inherent limitations on the use of computer
modeling. To be considered reliable and admissible at trial, it must be
shown all of the data used to make the calculations were accurate and based
upon the actual conditions of the fire scene. If the reliability can be
established so that the computer modeling evidence is admissible, it can
have a dramatic effect at trial.
Conclusion
Proper documentation of the fire scene is essential to a proper investigation.
It demonstrates the investigator's methodology in analyzing the fire scene
and establishes his expertise as a fire investigator. It brings credibility
to the expert conclusions of the fire investigator when they are presented
at trial.
More importantly, the use of demonstrative evidence at trial is a critical
tool in effectively presenting a case to the jury. It captures their attention,
focuses them on the evidence referenced in the investigator's testimony
and highlights the testimony and evidence presented at trial. It brings
a scientific and objective perspective to the testimony and evidence which
the jury must consider in reaching its verdict. It can be timely and costly
to prepare the demonstrative evidence needed to effectively present an arson
case. However, measured against the time and energy spent in developing
a case for trial it is a small price to pay.
 Reprinted with permission from the author.
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