 Origin and Cause: Legal Standards
of Proof
by Guy E. Burnette, Jr., Esquire
Contents
Introduction
Expert testimony on the origin and cause of a fire
is an indispensable part of every type of fire litigation. It is a requisite
element of proof in criminal and civil arson cases, subrogation actions
and fire liability claims. The corpus delecti of the crime of arson is established
through expert testimony proving the incendiary origin of the fire. The
essential elements of a civil arson case require proof of motive, opportunity
and incendiary origin. In subrogation and fire liability cases, proving
the actual cause of the fire through expert testimony establishes legal
liability. Regardless of the final issue of criminal or civil liability
in a case, the origin and cause of the fire will have to be proved to the
appropriate legal standard. The level of proof developed by an expert witness
in establishing the origin and cause of a fire will directly affect the
outcome of a trial. A successful result is dependent upon meeting the particular
level of proof required by the case.
It is generally understood criminal cases must be proved "beyond a
reasonable doubt" and civil cases must be proved "by the preponderance
or greater weight of the evidence" (although some jurisdictions require
civil arson cases be proved by "clear and convincing evidence",
a higher standard of proof). However, the level of proof necessary to render
an expert opinion on the origin and cause of a fire can vary and involves
a number of important considerations.
The Admissibility of Expert
Testimony
The rules of evidence permit the presentation of
expert testimony under established guidelines. The rules may differ somewhat
from state to state, but generally follow the standards of the federal rules
of evidence applicable to all federal court cases. Rule 702 provides:
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.
In order to be qualified as an expert witness,
a person must have scientific, technical or other specialized knowledge
in the field of his testimony. The source of that knowledge may come from
classroom education, self-study, on-the-job experience or any combination
of these. In practical effect, experience in the field is considered the
best source of knowledge. The level of knowledge required to qualify as
an expert witness is not specified under the rules of evidence. Courts have
generally required only that the expert witness possess knowledge in the
field beyond the level of the ordinary citizen, meaning almost any specialized
training and experience will usually qualify a witness as an expert. The
true extent of an expert's knowledge is considered a matter which goes to
the credibility or "weight" given to the testimony by the jury.
Qualifying as an expert witness is a relatively easy process. Convincing
the jury to accept the expert's testimony and conclusions about the case
may be a much more challenging undertaking.
Basis of Expert Testimony
The basis of an expert's opinion is the foundation
of his testimony and the focus of cross-examination by the adverse party.
Although a person may be qualified as an expert witness by the court, before
any expert opinion or conclusion is actually offered by the witness it must
have a legally valid basis. Traditionally, courts required that the expert's
opinion be based upon "generally accepted scientific principles."
This required a showing that the theories or principles underlying the expert's
opinion were widely recognized and acknowledged within the scientific community
of the field of expertise. This was designed to prevent untested theories
and unproven methods ("junk science") from being advanced in court.
At the same time, however, this limited the advancement of new theories
which may have had a proper scientific basis, but simply had not yet gained
recognition and acceptance in the scientific community.
The United States Supreme Court recently ruled
in a landmark case that this standard should be rejected in favor of a more
liberal one, recognizing scientific truth is not the product of scientific
"consensus" and the advancement of scientific knowledge often
precedes its universal acceptance. In the case of Daubert v. Merrell
Dow Pharmaceuticals, the Court held that the proper basis for expert
testimony is "scientific knowledge based upon scientific methodology"
establishing the conclusions beyond mere speculation or subjective belief.
It was held that the test for the admissibility of expert testimony should
consider several reliability factors, rather than the general acceptance
of the scientific community as an exclusive measure of admissibility. Those
factors include:
- Whether the theory has been reliably tested
- Whether the theory has been published or otherwise
subjected to "peer review" in the scientific community
- Whether the theory has a known or potential rate
of error
- Whether the opinion is based upon facts reasonably
relied upon by experts in the particular field
Under the Daubert rule, the admissibility
of an expert's opinions or conclusions will be measured against these indicators
of reliability and scientific validity. General acceptance within the scientific
community may still be considered as a factor, but may no longer be used
as the sole standard of admissibility. The other factors cited by the court
in Daubert should be considered in determining admissibility. As
a fail-safe, the trial judge still has the discretion to reject expert testimony
when it is considered to be too speculative or subjective to be reliable,
despite the presence of some of these factors. However, the Daubert
rule clearly means expert witnesses will now be given greater latitude in
demonstrating the basis for their opinions or conclusions. Certainly, it
will more freely admit expert testimony based upon new theories and emerging
principles of scientific knowledge. The reliability and validity of an expert's
opinions will ultimately be determined by the jury, but the trial judge
acting as "gatekeeper" must first evaluate the reliability of
the expert's conclusions and methodologies before the jury is ever allowed
to hear the testimony.
Levels of Proof
The first hurdle in presenting expert testimony
is qualifying as an expert witness. The second hurdle is showing the expert's
opinions or conclusions are based upon reliable scientific principles and
data. The final hurdle is demonstrating the level of certainty behind the
expert's opinions or conclusions.
In most fields of expert testimony, courts have
required the expert witness to establish his opinions or conclusions "to
a reasonable degree of scientific certainty." In fire litigation cases,
several courts have considered the level of "certainty" required
by a fire investigator to establish the origin and cause of a fire. In Lanza
v. Poretti, a federal court in Pennsylvania held the fire investigator
could not testify to the fire being caused by careless smoking of a cigar
because he could not present evidence supporting his opinion "to a
reasonable degree of scientific certainty", based upon the absence
of direct physical evidence of the cigar as the cause of the fire and the
elimination of all other possible causes. Although the investigator testified
the cigar was a "likely" cause of the fire, he acknowledged he
could not preclude arson as a likely cause, as well. He did eliminate all
other potential causes, however. The fire investigator's testimony was rejected
as mere speculation and conjecture in the absence of evidence eliminating
the possibility of arson.
Another Pennsylvania case, Breidor v. Sears,
Roebuck & Co., Subsequently held that "where a fire investigator
identifies the cause of fire in terms of probabilities (as opposed to mere
possibilities) by eliminating all but one reasonable potential cause, such
testimony is highly probative" and is admissible. Even though the investigator
based his opinion on probabilities rather than scientific certainty, this
was legally sufficient in the context of that case. This case cited with
approval the Lanza case, noting the result could be distinguished
because the investigator in Breidor had eliminated all potential
causes of the fire but one, even though he found no direct evidence of that
cause.
In an Illinois case, Commercial Union Insurance
Co. v. Basfield, it was argued that a fire investigator's opinion that
the careless use of smoking materials was the most likely cause of the fire
should be excluded because it was not based upon "a reasonable degree
of scientific certainty." The court rejected this argument, noting
"because all direct evidence is often destroyed, fire experts often
must rely on circumstantial evidence in determining the cause of a fire."
The fire investigator had ruled out other possible causes of the fire, even
though he found no direct evidence of smoking as the cause. He determined
smoking was the "most possible cause" with a probability of over
50 percent. This was deemed sufficient proof in a civil subrogation case.
In a criminal case, it would not have been adequate proof. The methodology
is appropriate to both criminal and civil cases, but a criminal case will
require a conclusive determination of the fire's cause. However, a conclusive
determination does not necessarily require direct evidence.
This issue has been addressed by NFPA 921, although
it has recently undergone a significant revision. The original 1992 version
of NFPA 921 stated:
12-6 certainty of opinions. When forming opinions
or hypotheses about fires or explosions, the investigator must set a minimum
standard for the proof of those opinions. Use of the scientific method
dictates that any hypothesis formed from an analysis of the data collected
in an investigation must stand the challenge of reasonable examination
(proof).
(a) a reasonable degree of scientific (engineering) certainty. This degree
of challenge corresponds to the degree of proof applied in criminal legal
proceedings, beyond a reasonable doubt. At this level of proof, all reasonable
alternatives to the hypothesis are considered and eliminated.
(b) probably true. This level of challenge corresponds to the degree of
proof applied in civil legal proceedings; more probably true than not.
At this level of proof, the chance of the data or hypothesis being true
is more than 50 percent.
(c) possibly true. This level of challenge corresponds to the degree of
proof in which other data or hypothesis may be equally or as nearly possible
as others.
(d) suspected to be true. This level of challenge corresponds to a perception
that the data or hypothesis may be true, but there are insufficient data
to draw a conclusion to the exclusion of any other reasonable conclusion.
Ultimately, the decision as to the truth of data collected in the investigation
or any hypothesis drawn from an analysis of the data rests with the investigator.
However, the scientific method precludes the use of "possibly true"
or "suspected to be true" data. Only data that are true to a
reasonable degree of scientific certainty or that are probably true should
be used in an analysis or hypothesis. If the data collected are only possibly
true or suspected, those data, or the cause should be listed as unknown,
undetermined, or under investigation.
The 1995 edition of NFPA 921 revised the language
in the four "degrees of challenge", changed them to "degrees
of confidence" and made the four levels a recommended, rather than
mandatory practice. The 1995 edition states:
12-6 opinions. When forming opinions or hypotheses
about fires or explosions, the investigator should set standards for the
degree of confidence in those opinions. Use of the scientific method dictates
that any hypothesis formed from an analysis of the data collected in an
investigation must stand the challenge of reasonable examination.
There are four levels of confidence that can be regularly applied to such
opinions.
(a) conclusive. At this level of confidence, the hypotheses has been tested
and withstood all appropriate challenges while all reasonable alternatives
to the hypothesis have been considered and eliminated due to their failure
to withstand a valid challenge, leaving only that hypothesis under consideration
as true.
(b) probable. This level of confidence corresponds to being more likely
true than not. At this level of confidence, the chance of the hypothesis
being true is more than 50 percent.
(c) possible. At this level of confidence, the hypothesis can be demonstrated
to be feasible but cannot be declared probable.
(d) suspected. This level of confidence corresponds to a perception that
the hypothesis may be true, but there are insufficient data to draw a conclusion
to the exclusion of any other reasonable conclusion.
Ultimately, the decision as to the level of confidence in data collected
in the investigation or any hypothesis drawn from an analysis of the data
rests with the investigator. The final opinion is only as good as the quality
of the data used in reaching that opinion. If the confidence level of the
opinion is only "possible" or "suspected", the cause
should be listed as unknown, undetermined, or under investigation.
The 1995 edition deleted the references to criminal
and civil legal proceedings, unlike the 1992 edition. However, the 1998
edition of NFPA 921 contained a far more extensive revision of this section,
eliminating the categories for levels of confidence. The 1998 edition states:
12-6 opinions. When forming opinions from hypotheses
about fires or explosions, the investigator should set standards for the
degree of confidence in those opinions. Use of the scientific method dictates
that any hypothesis formed from an analysis of the data collected in an
investigation must stand the challenge of reasonable examination. (see
chapter 2.) [see daubert v. Merrell dow pharmaceuticals, inc., 509 u.s.
579, 113 s.ct. 2786 (1993).]
Ultimately, the decision as to the level of confidence
in data collected in the investigation or any hypothesis drawn from an
analysis of the data rests with the investigator. The final opinion is
only as good as the quality of the data used in reaching that opinion.
If the confidence level of the opinion is only "possible" or
"suspected," the cause should be listed as undermined.
Thus, NFPA 921 now essentially leaves it up to
the investigator to find an appropriate level of confidence in the findings
and conclusions of the investigator. However, the legal sufficiency of an
opinion will remain an issue for the judge to decide.
In reaching the necessary level of confidence or
proof, the investigator faces an inevitable challenge to his findings where
they are based upon indirect or circumstantial evidence, rather than direct
proof. The nature of fire investigation makes this an inherent problem,
a point which finds support in sources such as section 2-3.5 of NFPA 921
requiring an investigator's conclusions to be solely based upon "empirical
data." Fire investigation is not a strictly empirical process, it is
in large part a deductive process. The courts have recognized this fact
and have upheld the deductive approach using circumstantial evidence as
satisfying the legal requirement of proof. A "reasonable degree of
scientific certainty" does not mean absolute empirical certainty. It
is a common tactic in cross-examination to suggest the absence of direct
proof (i.e., physical evidence) of a fire's cause means the investigator's
opinion cannot be considered reliable. As the cases previously referenced
show, this is not true. Where two or more potential causes of a fire are
equally likely, as in the lanza case, it is true. However, where all other
potential causes of a fire have been eliminated but one, that cause can
be considered to have been conclusively established. Where two or more potential
causes exist which are not equally likely, the most probable cause can still
be presented to satisfy the civil burden of proof. The elimination method
of origin and cause determination has long been accepted as proper fire
investigation methodology and it is proper, procedurally and legally. But
it will always be vulnerable to this line of attack. In responding to this
challenge to his findings, the investigator must convincingly demonstrate
the reliability and scientific validity of the basis of his opinion. Only
then can the necessary level of proof be established to convince the jury.
Conclusion
The fire investigator faces three hurdles in presenting
expert testimony on the origin and cause of a fire. The investigator must
be qualified as an expert witness, he must base his opinions or conclusions
upon reliable scientific principles or data, and he must reach the appropriate
"level of confidence" in support of his findings. The failure
to clear any one of these hurdles will be fatal to a case. With an awareness
of the legal standards required to prove the case, the job can be done properly
and professionally.
 Reprinted with permission from the author.
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