Pre-Trial Events and Preparation

excerpted from "Motive, Means, and Opportunity, A Guide to Fire Investigation."
American Re-Insurance Company, Claims Division, 1996.

The arrest of a suspect in an arson case is only one segment of the investigation. After the arrest, the investigator should prepare for the upcoming court proceedings. To do this, the investigator should be prepared to provide testimony at trial as well as to submit his or her reports. The reports will be carefully reviewed by countless investigators, lawyers, victims and insurers.

It's also worth keeping in mind the following:

• In all likelihood the arson case will be tried by a panel of lay people who have little or no experience with fire causes.
• Photographs, videos, diagrams and other demonstrative and real evidence must be collected to enhance the prosecution's case.
• Evidence must be presented that is aimed at convincing jurors that the fire was started intentionally and to educate them at the same time.
• When testifying, investigators should be firm but fair. You compromise your credibility by embellishing or refusing to concede on minor details. An aura of impartiality and fairness is more persuasive to a jury than extreme emotion and exaggeration.

A. Pre-Trial Events*

Various stages of an investigation proceed from the point the case is presented to the prosecutor for review. Investigators can be frustrated by misunderstandings about their responsibilities in the pre-charge and pre-trial phases of a case. The following list of responsibilities should help:

1. Media Relations

In discussing the case with the media, stay with the facts. Describe only what you know, not what you suppose. Some guidelines-

A. Explain there are only three causes of fire:

1. Accidental

2. Arson

3. Undetermined

B. Never say a fire is suspicious.

C. Remember that investigators and other witnesses may be held accountable for statements made to the media during all phases of the investigation, and while the fire is being suppressed. Realize that prosecutors are ethically responsible for all statements to the media, regardless who makes them.

D. When dealing with the media-

1. Remember, if you don't want it printed or broadcast, don't say it.

2. If you don't know the answer say so. Don't try to guess!

3. Answer questions in 30 seconds or less, then be quiet.

4. It's safe to expect to be quoted on everything you say, and sometimes that it maybe out of context.

5. Make a comment. The danger in saying "no comment" is that a reporter may make up answers for you by speculating.

6. Send a clear message that you're trying to help:

a) Return reporters' phone calls.

b) Allow camera crews access to the scene, if possible. If it's not possible, explain why (For example, the site is too dangerous, etc.)

7. Never make sarcastic comments. This could influence the reporter to write a less than favorable story.

8. Avoid the appearance of a cover-up. Be as open as possible, even if it means saying, "I don't know."

9. Keep in mind that the media are working on a deadline.

10. The interview isn't over until the news crew and reporters leave. Your actions and words are being observed the entire time.

11. If you are attending a press conference:

a) Wear a suit or a uniform. Never wear sunglasses.

b) Try to schedule the news conference for the morning, preferably 10 a.m. This will allow reporters adequate time to meet their deadlines.

c) Have the conference in a room large enough to comfortably accommodate reporters, cameras, etc.

d) Be prepared! Have copies of news releases available.

e) Set up chalkboards, diagrams, etc. in advance.

f) Allow only one person to speak at a time.

g) Arrive three minutes late, so that you won't be tempted to "chat" with reporters before the conference begins.

h) ALWAYS use a written statement. It should take no more than one minute to read the statement at the beginning of the conference. Do not wing it.

i) End the conference by saying, "I'll take one more question." Answer it and leave.

2. After Charges Are Filed

A. Keep in mind that the investigation is not over at this point. Still to be done are:

1. follow-up interviews with witnesses

2. creation and review of documents and records is ongoing

3. criminal histories and alibis must be investigated

3. The Deposition

The Deposition is a key part of the Filing Charges process. There are two types of depositions. The first is called Discovery.

a. The Discovery process is the process by which parties to a case must disclose all relevant information in their possession prior to trial. Here are some key points about discovery:

1. The Defense must have copies of or access to:

(a) Statements and non-confidential reports. (Provide photocopies with all addresses and phone numbers blacked. You may charge a fee of, for example, $1.00 per page.)

(b) Photos

(1) Copies of photos and videos for a fee. (You may arrange it so that the Defense must buy all or none.)

(2) Provide only when the Defense asks for them. You don't have to volunteer. (3) NEVER give them the originals!

2. Do not give the Defense copies of investigator notes.

b. The second type of deposition is called Trial and its purpose is to replace actual testimony (usually for ill people or people unavailable for the trial).

Key points-

• Remember a deposition is testimony under oath, just like a trial.
• Respond to questions, but don't volunteer anything.
• Be prepared! Meet with a lawyer before being deposed.

4. Presenting Cases for the Prosecutor's Review

The manner in which a case is presented for review by the prosecutor is crucial to the prosecutor's evaluation of the case and decision whether or not to prosecute.

Key points-

a. Give the prosecutor an organized, presentable package of:

(1) reports

(2) physical evidence

(3) lab results

(4) witness list

(5) transcribed statements

(6) photographs

(7) other investigator work products

(8) criminal histories of suspects and witnesses

b. Probable Cause means that it's more probable than not that the suspect set the fire. The prosecutor may want a Probable Cause Affidavit. Here are some suggestions for what to include in a Probable Cause Affidavit:

(1) information about where, when and what occurred.

(2) a paragraph summarizing the fire scene investigation:

(a) who conducted the examination

(b) one or two sentences summarizing how the fire was started (in the fire investigator's opinion)

(c) a statement that all reasonable accidental causes for the fire have been eliminated

(d) an estimate of the amount of damage

(3) a paragraph indicating that when interviewed the owner gave no one permission to burn or otherwise damage the property

(4) a paragraph indicating that on _[Date]_, _[Suspect]__ filed a claim for $__________ with the _[Name]_ insurance company for this fire loss.

(5) a paragraph summarizing the information learned from each witness, for example, "During an interview with Jane Smith, she said she observed..."

(6) a closing statement: "All these events took place in ________ (fill in city/county, etc.)"

c. Prosecutors are very busy. Make an appointment. Keep in mind also that some prosecutors have specific procedures for reviewing/screening cases. Become familiar with these procedures and accommodate them in presenting the case.

d. Be realistic about the case. Make sure you can link the suspect to the fire with evidence. Everyone may "know" the suspect started the fire, but without strong evidence, the case may not be strong enough to prosecute successfully. Also, don't expect the prosecutor to be enthusiastic about the case. Prosecutors have a lot on their plates. Remember they are pursuing all crimes, not just arson. A circumstantial arson case is not easy to prosecute.

e. Keep the lines of communication open. Build a relationship with the prosecutor.

(1) Try to have lunch together regularly.

(2) Find out about the investigations he or she is interested in working on.

(3) Ask about the types of demonstrative evidence that can be admitted in the jurisdiction.

Work Together

To prepare for the trial, first meet with a lawyer. Discuss the theme of the case. Explain what evidence has been collected and how it could be presented.

Develop a plan together.

Carefully examine the case's weaknesses and anticipate the Defense's strategy. Prepare exhibits, charts, diagrams, maps, etc. Be certain photos are processed, enlarged, and organized. Finally, practice what you will say.

*This section is based upon, and contains excerpts and quotes from "How to Make Love to a Prosecutor," by Peter S. Beering, C.F.I. and is used with his permission.

BIBLIOGRAPHY

Beering, Peter S.,C.F.I., How to Make Love to a Prosecutor or How Not to Get Screwed By a Prosecutor, 43rd Annual Seminar of the International Association of Arson Investigators, January 1992, p. 13-29

Burnette, Guy E., Jr. Expert Testimony in an Arson Case.pages 1-19. Mr. Burnette is a member of the law firm of Butler, Burnette and Pappas of Tampa, Florida

Reprinted with permission.