By Buddy Cales
For those of us who have been in the field of fire investigation for a considerable time, we have come to see significant changes in how we perform a fire investigation, what qualifications we need to have to conduct those investigations, how that investigation is perceived by our peers and the “outsiders,” and how changes brought about by documents published by the National Fire Protection Association (NFPA) have changed the what, how and who of conducting a fire scene origin-and-cause investigation (remember, it wasn’t even called that--do the days of “cause and origin” reverberate with you).
It goes without saying that in today’s world of being a fire investigator, if you do not know and follow NFPA 921, Guide for Fire and Explosive Investigations, you probably shouldn’t be doing a fire scene origin-and-cause investigation anyway. NFPA 921 has been around for a while now, and the current 2017 edition has been updated to allow the fire investigator to better investigate a fire scene and render a scientific-based opinion (never lose sight of that word OPINION) as to the origin and the cause of the fire.
Understand, without any room for discussion, that NFPA 921 is the standard you will be held to and held up against when your fire investigation is scrutinized or when you are providing testimony in a legal proceeding. A recent development is that NFPA 921 has recently become a recommended guide for conducting a fire investigation by the Organization of Scientific Area Committees (OSAC), a collaborative body of more than 600 forensic science practitioners and experts who recommend forensic science consensus standards and guidelines, another in a long line of organizations standing behind NFPA 921.
After the initial publication of NFPA 921, there was a period where it was ignored, accepted in part, or fully embraced by the fire investigation community. Now, adherence to what NFPA 921 says provides the support of a fire investigator's opinion and also provides the foundation for the potential for a serious challenge to any origin and cause testimony when and if NFPA 921 is not followed.
To further the “are you up to the challenge question,” the fire investigation field has become a bit more complex with the creation and wide acceptance of NFPA 1033, Standard for Professional Qualifications for Fire Investigator. Although much shorter in length, NFPA 1033 contains and establishes the base line “standards” that a fire investigator must have. It speaks to and identifies the minimum job performance requirements necessary to serve as a fire investigator, in both the private and public sectors. It applies to all fire investigations including outside, vehicle, and other fires that are not structural. The ignorance of, or the failure to be totally versed in NFPA 1033 as it has gone through revision cycles can substantially and significantly jeopardize the investigation and leave the fire investigator wide open to criticism and attack. We haven’t even gotten to if the investigator followed NFPA 921 or not yet.
NFPA 1033 speaks to the requirements the investigator “shall have and maintain” at a minimum. Increasingly more referenced by the triers of the facts, it is important that fire investigators thoroughly understand that their actions during the investigation of a fire scene and the conclusions they make are based on that fire scene examination can have serious ramifications from both legal and economic standpoints. It is essential that “fire investigators” be fully qualified to evaluate the entire fire scene so they can conduct complete and accurate investigations.
It is becoming increasingly difficult to meet the challenge of providing “expert testimony.” First, there was DAUBERT where in 1993 it was decided that the “court will serve as the gatekeeper of all expert challenges.” This is before the matter ever goes to the jury to decide. Where do you fit in to meet the “expert challenge,” and what can you do to prepare yourself for that inevitable process?
Back in 2014, the NFPA revised both NFPA 1033 and NFPA 921 and issued new versions of each guide. The objective was to bring the two documents closer together in their content. The 2014 version of NFPA 1033, states for the first time that the fire investigator is accountable to “remain current on the topics” which are set forth in the general requirements section of the document. As a fire investigator, where do you fit in meeting the criteria for the topics covered in the document? Can you call yourself “current on the topics?” If so, how do you demonstrate that, and can you prove it when the time comes? How will others look at your qualifications as they relate to NFPA 1033? Remember the significant difference in the two documents: NFPA 921 is a guide; NFPA 1033 is a standard. There’s a huge difference between those two words.
Are you keeping your qualifications and training current and up to date on the latest methodologies and techniques in the field of fire investigation, and are you documenting your investigative experience thoroughly and completely enough to withstand the challenge when it comes time to testify or you attempt to testify as an “expert.” It is a rhetorical question for sure, but an issue that requires the fire investigator to “stay ahead of the curve” so to speak when it comes to maintaining these qualifications and training.
In an attempt to overcome potential challenges to providing expert testimony, it is important that the fire investigator maintain a current and up-to-date Curriculum Vitae (CV). The CV will provide the court (and the opposing attorneys) with a summary of the fire investigator’s education, experience, training, and skills. It is designed to prepare the court for the upcoming testimony by providing the relevant background of the fire investigator in advance. The CV should be tailored and specific to the subject matter at hand: fire investigation. Any fire investigator seeking to testify as an expert should recognize and understand the difference between a resume and a CV and the advantages of using a CV when attempting to overcome the challenge of testifying as an expert witness.
The creation and evolution of NFPA 921 have done a tremendous amount to ensure that the fire investigator follows and adheres to adopted standards when it comes to how the fire investigation scene is examined from a methodology standpoint. NFPA 1033 is the document now being used by attorneys and accepted by the courts as the framework to determine the creditability in support of a fire investigator’s qualification or, in some cases, to attack the fire investigator in an effort to disqualify him from testifying as an expert witness. Remember that “opinion” word again when it comes to providing testimony. Is the testimony going to be limited fact-based information, or will the fire investigator be allowed to testify to those opinions formed at the fire scene? I guess the question for all of us to answer is, “Are we up to the challenge?”
Adrian J. “Buddy” Cales has more than 30 years of fire investigation experience in law enforcement, the fire service, and in the private sector. He has been a member of the fire service since 1977 and served as the chief of the Paramus (NJ) Fire Department. He is a member of the National Fire Protection Association Technical Committees for Professional Qualifications for Fire Investigator (NFPA 1033) and for Fire Marshals (NFPA 1037). He is an expert witness in fire investigation, fire scene origin and cause determination, and fire behavior. He has instructed at FDIC International since 1997 and is a featured presenter in Fire Engineering’s Training Minutes videos and Roll Call Training Tips on fire investigation-related topics.