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Expert Testimony in an Arson Case

by Guy E. Burnette, Jr., Esquire

Expert testimony is the cornerstone of an arson case. It establishes the corpus delicti of arson and serves as the framework for all other evidence in the trial. It is an essential part of every arson prosecution and is the most important testimony at trial in almost every civil arson case.

More than any other witness, the fire investigator as expert witness has the ability to single-handedly influence the outcome of an arson trial by his or her testimony. Ineffective expert testimony by the fire investigator can result in a directed verdict. Effective expert testimony by the fire investigator will usually result in a criminal case conviction or verdict for the insurer in a civil case. Presenting effective expert testimony at trial requires thorough preparation and careful presentation. This involves a coordinated effort between the fire investigator and prosecutor or civil attorney. More than anything else, it requires a commitment of time and effort on the part of the witness and the lawyer to ensure the testimony is properly presented at trial.

Contents

The Expert Defined
Qualifying as an Expert Witness
Deposition Testimony
- A. The Availability of Discovery Deposition in Arson Cases
- B. "Let's Go Fishing": The Object of A Deposition
Trial Testimony
- A. Qualification questions
- B. Presenting the testimony
  - 1) The Ground Rules
Conclusion
Appendix A: Expert Witness Information Sheet

The Expert Defined

The concept of an "expert witness" has a special legal significance. The definition of an expert witness is found in the rules of evidence. The evidence codes in most states are similar or identical to the federal rules of evidence (rule 702) and provide:

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.
(rule 702, federal rules of evidence)

There are two prerequisites for the admissibility of expert testimony at trial. First, the witness must be qualified by virtue of knowledge, skill, experience, training or education in the field. Second, the subject of the expert's testimony must be something outside of the knowledge and understanding of ordinary persons such as jurors, so that the testimony will help the jury to better understand the evidence and determine the facts to be decided at trial.

The term "expert witness" is somewhat misleading. Qualification as an expert witness by the court does not mean the witness is an infallible source-authority in the field of fire investigation nor is this required to be qualified. All that is required of the witness is a showing of some special knowledge or understanding of the field which the ordinary person does not possess. The means by which an expert witness has acquired the special knowledge or understanding of the field can vary. It does not require a "diploma" in expert testimony nor any formalized training and education. In practical effect, formal education is much less important than actual experience in the investigation of fires.

Qualifying as an Expert Witness

The process of qualifying as an expert witness at trial can be intimidating. An expert witness feels particularly vulnerable during the qualification process, especially during cross-examination on the expert's qualifications. Questions will be asked about the expert's educational background and formal schooling, employment history, rank and responsibilities in the department or agency, the number of fire scenes previously investigated and the number of times the investigator has previously been qualified as an expert witness at trial. Every investigator would like to have more education, higher rank and more experience at the time of trial when these questions are asked. Qualifying as an expert witness for the first time can be a humbling experience. However, there is no guarantee it will get any easier down the road. Every time a fire investigator goes through the qualification process the challenge must be faced again.

Recent court decisions have complicated the process of qualifying and testifying as an expert. Even as courts acknowledge the rules of evidence are designed to facilitate the admission of expert testimony, they have expressed concerns about the substantiative quality of expert testimony presented in court. There are now "experts" ready to testify about almost any issue in court proceedings. Many of them are claiming to be experts in previously unknown fields of expertise which often seem to have been created for the purpose of supporting the claims of litigants. These so-called areas of expertise have been denounced as "junk science" by the courts in trying to prevent such testimony from being admitted.

A decision of the United States Supreme Court called Merrell Dow Pharmaceuticals v. Daubert has resulted in a great deal of controversy over the proper methods for determining whether expert testimony has been validly developed or is only the product of "junk science". There is uncertainty over the circumstances where this issue must be confronted, but it most often arises in cases of scientific expert testimony. Although the process of fire investigation involves many components, including the human component of deductive reasoning and personal observation, the "fire science" component is at the very heart of the process. NFPA 921 specifies the proper method of fire investigation is the "scientific method". With the involvement of those issues of science, the field of fire investigation may be subjected to the scrutiny of courts under the reliability tests established by the supreme court in Daubert.

As part of the qualification process, or even prior to trial, the investigator will be required to show the methods of investigation and the theories relied upon in conducting the investigation have a proper scientific foundation. It is no longer merely a matter of establishing an investigator's background and experience to be qualified as an expert. Today, the investigator must establish proper procedures and methodologies were used in the investigation before he will be qualified by the court and allowed to testify as an expert.

Deposition Testimony

Trial testimony of an expert witness in an arson case is generally regarded to be the most important part of the case. Cases are won or lost based upon the testimony of the expert at trial. While that may be true, the success or failure of an expert's testimony may be determined long before trial. The testimony of an expert witness at deposition is the true point at which a case is won or lost. A poor performance at deposition can have a devastating impact upon a case. An understanding of the importance of deposition testimony is an essential part of the game plan in litigating arson cases.

A. The Availability of Discovery Deposition in Arson Cases

At one time, the availability of discovery depositions was something of an open issue. For many years, the taking of a deposition required a special court order to allow it. Today, this may only be an issue in federal criminal proceedings. There is no right to take depositions in a federal criminal case and there are specific procedures which must be followed to authorize the taking of a deposition.

In all other cases, however, there is now a recognized right to take discovery depositions of all witnesses in most jurisdictions. All federal civil cases allow the taking of depositions, including the depositions of expert witnesses. Almost all state court civil and criminal cases now allow the taking of depositions, as well. It is something which an investigator should expect to face when the case is being litigated.

However, both the federal rules of civil procedure and the state rules of civil procedure typically prohibit discovery of the facts and opinions of an expert witness who was retained but will not be called to testify at trial, absent a showing of exceptional circumstances by the party seeking discovery. As to the expert witness providing information about his facts and opinions in interrogatory answers or at deposition, both the federal and state court rules often provide that the expert shall be paid a reasonable fee for the time spent in responding to the discovery by the party who seeks it. Moreover, a party seeking discovery of an expert's findings may, in the discretion of the court, be required to pay a portion of the fees originally charged by the expert in formulating his opinion. In cases where the findings and opinions of an expert witness who will not be testifying at trial have been ordered to be disclosed to the opposing party, both the state and federal court civil rules commonly require that the party seeking that information pay a portion of the fees charged by that expert in originally formulating his opinions.

B. Let's Go Fishing

Once the deposition of an expert witness has been scheduled, the purpose of that deposition must be understood. To put it plainly, it is nothing more than a fishing expedition. The objective is to find out anything and everything about the expert witness himself, his activities in the case at hand and the basis of his expert opinion that will be offered at trial. The attorney conducting the deposition will utilize any number of strategies in achieving this objective. The prosecutor or attorney representing the expert witness at deposition must be aware of these strategies and must be prepared to respond.

1) "This is not a Picnic"

The setting for a deposition is usually informal, and far less structured than testimony at trial. However, a deposition should always be taken seriously by both the witness and the prosecutor or civil attorney. It should be approached as a "dress rehearsal" for trial. Indeed, should the expert witness later become unavailable for some reason his deposition testimony will become his testimony at trial. Certainly, anything that is answered incompletely or differently from his testimony at trial will be used for impeachment purposes. The expert witness and the prosecutor or civil attorney should view the deposition the same way as they view the trial. In practical effect, they are one and the same. No prosecutor would be absent from the courtroom during cross-examination of a key expert witness for the state. However, it is a common practice for prosecutors to fail to even attend the deposition of an expert witness in an arson case. The prosecutor should not only be there for the deposition, he or she should meet with the expert witness prior to the time of the deposition in order to review the anticipated testimony and prepare for the deposition. Only in that way can the expert witness and prosecutor both be ready for the deposition.

2) "Beware of Greeks Bearing Gifts"

The attorney conducting a deposition wants to catch the witness off guard. He wants the witness to say something he really didn't want to say. He does not want the witness to feel he is on the defensive, although he certainly should feel that way. To this end, the attorney will often try to put the expert witness at ease by telling jokes and trying to charm his way into the expert's heart. The same attorney who pats the witness on the back at deposition will have a knife in his hand when he does it at trial. No matter how congenial or friendly the attorney may seem, his sole purpose in conducting the deposition is to discredit the expert's testimony.

3) "So, Tell Me Your Life Story"

As previously stated, the attorney conducting a deposition wants to know anything and everything about the expert witness. This will certainly include a review of the expert's professional life history. The witness can expect to be asked about most of the following areas:

educational history
degrees and certificates obtained
licenses and professional accreditation attained
investigations or suspensions by regulatory agencies
litigation arising out of the expert's professional activities
prior expert testimony: how often, when and where
prior associations with the party and law firm who retained him in this case
testimony for the defense or claimant's side
testimony for the state or insurer's side
membership in professional organizations
activities and leadership roles in professional organizations
publications and presentations at training programs
research activities in the field
attendance at continuing education programs

A skilled attorney will not only develop this information, he will verify it after the deposition. The expert witness should be prepared for this in advance of the deposition and the prosecutor should be fully aware of the background history of the expert witness prior to the time of the deposition. A witness prepared for testimony on these issues can be sure the testimony is presented in the most effective way possible.

4) Why are You Here?

Having developed a full picture of the expert's background, the focus of the deposition will be turned to the case at hand. The inquiry will include the following areas:

who retained you in this case?
when were you retained?
what was the precise scope of the assignment when you were retained?
what information were you given at the time you were assigned to this case?
what information did you develop prior to carrying out the investigation?
what outside sources of information did you consult at any stage of your investigation?
when did you initiate your investigation?
when did you first reach a conclusion?
what information have you learned since reaching your conclusion?
have you pursued any further information since completing your investigation?
have you been made aware of the findings of other experts in this case?
have you reviewed the findings and opinions of any other such experts?

Because the scope of questioning at a deposition is much broader than the questioning which will be permitted at trial, there is a much greater potential for the expert witness to get into trouble. Once again, the key to avoiding problems is careful preparation prior to the time of the deposition by meeting with the prosecutor or civil attorney and reviewing the anticipated testimony. The investigator must be careful in answering questions so as not to make any careless remarks which will be regretted later. The investigator cannot afford to lose patience during the deposition or react to what might be an insulting question or comment. The investigator must never volunteer information beyond what is strictly necessary to answer the question. An unprepared investigator is only inviting disaster and this remains the most important consideration in successfully testifying at deposition.

Trial Testimony

A. Qualification questions

In order to testify as an expert witness, the investigator must first be qualified. This is the process of demonstrating the investigator's training and experience in the field of fire investigation. A series of questions must be asked of the investigator in order to lay out those qualifications. Typically, the following areas will be covered:

current employment as a fire investigator, including the position held by the investigator with the duties and responsibilities of that position
the jurisdictional authority of the fire investigator
employment history and prior experience in fire service or fire investigation
general educational background
specialized training and education in the field of fire science and fire investigation
familiarity with specialized publications and materials in the field of fire investigation
membership in organizations or groups concerned with fire investigation and arson suppression
the number of fire scene investigations which the investigator has conducted or participated in
the number of fires for which the investigator has made a determination of cause and origin
the number of times the investigator has given testimony in official proceedings such as grand jury hearings, depositions and prior trials
the number of times and the jurisdictions in which the investigator has previously been qualified as an expert witness in the field of fire cause and origin

Additional questions may be asked of the investigator depending upon his or her background and experience. The particular facts of a fire may make the investigator uniquely qualified to testify as an expert in that case.

In order to effectively qualify as an expert witness, the investigator must not only demonstrate the requisite experience and training to qualify, but must demonstrate to the jury true professional expertise. The qualification process should establish the expertise of the witness and set the stage for the testimony which will follow. The investigator's credibility will be established during the qualification process. In order to do this, both the investigator and the attorney must be fully prepared. The investigator must familiarize the attorney with his or her background, training and experience in the field. In that way, the attorney knows which questions to ask and how to ask them. More importantly, the attorney knows which questions not to ask. The investigator should prepare a detailed written resume outlining the investigator's qualifications and prior experience for the attorney to review prior to trial. The attorney and investigator must meet prior to trial for a full rehearsal of the qualification process, as well as the rest of the investigator's testimony. A attorney should never stipulate to the witness being qualified as an expert, but should permit the jury to hear the full range of the expert's experience and training in order to properly assess the credibility of the witness' testimony.

B. Presenting the testimony

Expert testimony in an arson trial should do much more than simply establish the cause and origin of the fire. It should focus the jury's attention on the critical evidence in the case and develop the theory of the case. The expert's testimony should be interesting and informative. It should establish the credibility of the witness as an expert, thereby establishing the credibility of the entire case. The expert's testimony should be the highlight of the trial. In order to achieve this, the testimony must be properly presented.

There are certain ground rules for successful testimony as an expert witness at trial. Some of these rules are obvious, yet they are often overlooked by even the most experienced expert witness. These rules should be understood and kept in mind every time an expert testifies at trial.

1) The Ground Rules

a) Preparation. The most important rule of trial testimony is, unfortunately, the rule most often broken. There is no substitute for preparation. At trial, the witness and the prosecutor or civil attorney must be thoroughly familiar with the investigative file. The expert should be able to recite all of the steps in the investigation in the proper order in which they took place. The expert should be able to recall names, dates and places without hesitation. Similarly, the lawyer must be completely familiar with the facts of the case in order to effectively develop the testimony from the witness. The expert and the lawyer should both be oriented to the fire scene and its physical layout. Both the expert and the lawyer should prepare an outline of all of the important facts in the case and the key points to be developed during the testimony of the expert witness. The lawyer should provide an outline of these key points to the witness prior to trial which can be reviewed in preparing for trial and while the witness is waiting to testify.

b) Organization. As part of the expert's preparation, he should organize the file and the presentation of testimony. Generally, the most effective presentation is one which follows the chronological order of the investigation. However, this is not a rigid rule and the objective should be an orderly, understandable presentation of the case to the jury. Photographs and exhibits should be organized in the proper order and numbered accordingly. In that way, the witness will not be jumping back and forth between areas of the fire scene when describing the photographs to the jury. A well organized presentation to a jury captures their interest, demonstrates the professionalism of the witness and enhances the credibility of the testimony.

c) Physical appearance. It should be obvious that one who is testifying at trial in the role of an expert should look professional. Before the first words of testimony are spoken, the jury will form an opinion of the witness from appearance and manner of dress. A witness from fire service or law enforcement who is dressed in uniform at trial is always an impressive sight. It reminds the jury that the witness is a public servant. If the witness does not belong in a uniform, a coat and tie should always be worn to court. Bright colors and plaids should be strictly avoided. Similarly, flashy jewelry should never be worn to court. A jury is influenced by the physical appearance of a witness and will draw conclusions about the credibility of the witness based upon that appearance. It goes without saying, the same rules apply for the prosecutor who will be conducting the trial.

d) Attitude and demeanor. A somber, professional attitude while testifying will bolster the image of the witness before the jury. Arson is a deadly serious issue and the investigator's demeanor at trial should reflect that belief. The witness should be courteous at all times, especially during cross-examination and when discussing the alleged arsonist. Sarcastic remarks from the witness stand have no place in an arson trial. The objectivity of an investigator's case will be reflected in the objectivity of the testimony. For these same reasons, the prosecutor must ensure he or she may maintains the same approach during the expert witness' testimony and throughout the trial.

e) Nervousness. Every person who has testified at trial has experienced nervousness and anxiety. It is a natural reaction to the circumstances of the proceeding. However, extreme nervousness can undermine the effectiveness of trial testimony. Certainly, an adept defense attorney will seek to exploit the nervousness of a witness in order to confuse and disrupt the witness' testimony.

Thorough preparation is still the best way to deal with nervousness. Nervousness is typically the product of uncertainty. Thorough preparation and organization will remove much of the uncertainty of trial testimony. A rehearsal before trial with the attorney involved in the case can alleviate concerns about the process of testifying at trial. This rehearsal should include both direct and cross-examination on the facts of the case.

A slow-paced, deliberate style in testifying is the best approach to this problem. Controlled breathing is recognized as an effective way to reduce tension. A nervous witness should certainly avoid drinking coffee while waiting to be called to the stand.

Preparation by the lawyer prior to trial will identify potential problems with nervousness and will enable the lawyer and expert witness to minimize the effects of nervousness on the part of the witness.

f) Candor. In order to believe an expert's findings, the jury must first believe in the witness personally. Sweeping generalizations, statements in absolute terms and the refusal to recognize unfavorable evidence will weaken the expert's credibility before the jury. It is far better to candidly acknowledge the problems in a case than to lose the appearance of objectivity by ignoring the facts. In preparing for trial, the expert should identify the problem areas of the investigation and the weaknesses in the case. The witness should be prepared to acknowledge them while pointing out the reasons they do not influence the outcome of the findings. During trial preparation, the prosecutor must ensure this point is stressed to the expert witness in order to maximize the credibility of the witness at trial.

g) Confidence. In order to convince the jury the expert's findings are correct, the witness must demonstrate his own belief in the case. The expert should not have to apologize for the findings. The expert should not back down from those findings, especially during cross-examination. Once a case has proceeded to trial, it is not the time to show any uncertainty about the expert's findings. Preparation with the expert witness prior to trial will serve to identify any areas of uncertainty on the part of the expert witness so that those concerns can be addressed prior to the time of trial testimony. Lack of experience in testifying as an expert witness can create uncertainty. Unfamiliarity with the trial process can similarly create apprehension on the part of the witness.

Once again, careful preparation prior to trial and a review of the anticipated testimony with the prosecutor will serve to allay these concerns and bolster the confidence of the expert witness preparing for trial.

h) Terminology. There is a special terminology in fire science investigation. Certain technical terms are widely used by investigators and other authorities in the field. However, in all probability the jury has never heard any of those terms before.

The expert must be able to relate the testimony in terms that are understandable by the jury yet still sufficiently professional to reflect his expertise. The witness should be prepared to explain the terminology and the significance of the particular terms without "talking down" to the jury. In fact, explaining technical terminology to the jury provides the witness with an opportunity to demonstrate expertise while establishing a rapport with the jury.

This rule applies to both expert witnesses and attorneys. A lack of familiarity with the terminology of arson investigation can cause the attorney to be ineffective in eliciting testimony from the expert witness. The attorney must have an understanding of the technical aspects of the case in order to properly present the testimony. Again, this can only be accomplished through proper preparation prior to the time of trial involving both the attorney and the expert witness.

i) Communication with the jury. As previously stated, the very purpose of expert testimony is to assist the jury. Therefore, the witness must remember that the testimony is directed at the jury seated in the jury box. Establishing eye contact with the jury and speaking directly to the jury serves two purposes. First, it shows that the witness is not afraid to "look the jury in the eye" and present testimony. That has long been recognized as a measure of candor and truthfulness. Second, it shows the respect due the jury in its important role as trier of fact in the case. It also serves to direct the jury's attention to the testimony being presented through the expert witness.

A good lawyer will take advantage of every opportunity during a trial for personal contact with the jury in order to personalize the case and establish rapport. The expert witness should take the same approach. For this reason, the expert witness should (with the approval of the judge) leave the witness stand and go right over to the jury box when testifying about photographs, diagrams, and physical evidence. The witness should stand directly in front of the jury and point out the important aspects of the photographs, diagrams and evidence. The witness should hand the evidence to the jury members for their inspection as he/she testifies. Once again, the witness can develop direct eye contact with the jury members while standing there face-to-face.

During cross-examination, a lawyer will often walk across the courtroom to the opposite side from the jury box. Sometimes, the defense attorney will even try to block the jury's view of the expert witness during his or her testimony. The prosecutor or civil attorney must be alert to these defense strategies and prevent them from interfering with the testimony of the expert witness.

j) Exhibits and visual aids. An effective presentation of expert testimony on the cause and origin of a fire will make use of visual aids and demonstrative exhibits. A fire scene can never be accurately "described" to a jury; it must be shown to them in photographs, slides and diagrams. A skilled presentation of visual aids will not only serve to familiarize the jury with the fire scene and the significant evidence at that scene, it will also capture their interest and focus their attention on the testimony. The fire investigator's expert testimony should be the highlight of an arson trial. Prior to the time of trial, the lawyer must meet with the expert witness to review the demonstrative evidence which will be used at trial. The lawyer must be familiar with the demonstrative evidence and must plan for how it will be effectively used at trial.

Photographs are, of course, a part of every investigator's standard procedures at a fire scene. However, at the time of trial the investigator must have enlargements of the fire scene photographs to show the jury. Photographs should be enlarged to a minimum of 8 x 11. A critical photograph of the fire scene should be enlarged even further. An even more dramatic method of showing the jury details from the fire scene is to utilize slides. However, photographs should still be used so that the jury can study them during deliberations.

A large diagram of the fire scene should always be part of the investigator's presentation. The diagram will be used to show the path of burn of the fire, the presence (or absence) of significant items in the building and the location of doors and windows in the building. Once again, it is something the jury can examine during deliberations at the close of trial. Sometimes the facts of a case will warrant test burns to establish the combustibility or flammability of materials found at the fire scene or to show the effect of fire on the materials. This can be captured on video tape for a dramatic and interesting presentation to the jury at trial. If video tape is not available, then slides or photographs can be used.

There are many other types of demonstrative evidence which may be used at trial. Scale models of a fire scene can provide a visual representation for the jury which will make the testimony of the fire investigator easy to follow and comprehend. Computer graphic simulation can recreate a fire to demonstrate the physical effects of the fire found by the investigator which are the basis of his conclusions about the fire's origin and cause. Computer modeling can bring a statistical element to the fire investigation process which objectively verifies the conclusions of the fire investigator using mathematical formulas. All of these types of demonstrative evidence can assist in the presentation of trial evidence. While many of them may seem beyond the technical or financial reach of your case, some kind of demonstrative evidence can always be prepared for use at trial using the most basic materials. Whatever may be available to your case should be considered. It will always strengthen the presentation of the case at trial.

Conclusion

A well-organized, systematic approach to expert testimony in an arson case will enable the witness to make an interesting, entertaining and effective presentation to the jury at trial. That is what leads to the successful result every investigator seeks.

Appendix A: Expert Witness Information Sheet

Employment

Name:_____________________________ agency:_________________________________ employed with agency since:_______ current title/rank:___________________________

Current title/rank since:_________ duties: __________________________________________

_________________________________________________________________________________

Previous title/rank with current agency (if applicable):__________________________________

Time period for previous title/rank:___________________________________________________

Duties:___________________________________________________________________________

_________________________________________________________________________________

Prior employer/agency:_____________________________________________________________

Period of employment:__________________ title/rank:_____________________________

Duties:___________________________________________________________________________

_________________________________________________________________________________

Prior fire service experience - department:_____________________________________________

Time in fire service:____________ initial title/rank___________________________________

Last title/rank:_________________ duties:___________________________________________

State certification(s) in fire service:___________________________________________________

____________________________ date(s) of certification:_____________________________

Prior military service-branch of service:_______________________________________________

Length of service:___________ rank at separation/discharge: _______________________

Fire service/ordnance training in military:______________________________________________

Status at separation/discharge (honorable/other):_______________________________________

Education

High school/ged earned:___________ school and year: _____________________________

Community college/university courses taken:__________________________________________

_________________________________________________________________________________

Name of college/university:_______________________ year(s)___________________________

Grade point average:______________ degree(s) earned: ____________________________

Post-graduate studies:____________ college/university: ___________________________

Grade point average:______________ degree(s) earned: ____________________________

Fire investigation training

On-the-job training (agency):_______________ supervisor/trainer:______________________

Length and dates of o.j.t.:__________________________________________________________

Number of fires investigated with supervisor/trainer:_____________________________________

Number of criminal/civil cases made from o.j.t. investigations: ___________________________

Number of in-service training programs:_______________________________________________

Subject area(s) of in-service training programs:_________________________________________

_________________________________________________________________________________

Date(s) and place(s) of in-service training programs:_____________________________________

__________________________________________________________________________________

Instructors:________________________________________________________________________

Other training programs attended (attach continuation if needed)

(a) title of program:____________________________________ date: _______________________

Place:__________________ topics:___________________________________________________