Such determination is the goal of any arson investigation.
The advantages of accurate and thorough fire investigations should be obvious. All fifty states statutorily allow public investigations of all fires in an effort to determine their origins and causes. This process, however, is not without complications and, too often, the cause and origin are left as unresolved and identified as undetermined causes.
Some fires are the result of complex events whose origins and cause are not immediately obvious. The investigation may require the gathering of extensive data so that the investigator is not guessing at the cause or is basing his decision on the circumstances surrounding the event. This procedure may take considerable time and may never render any definable evidence as to the cause and origin. This is the essence of arson investigation.
Fire investigation is also complicated by the fact that the destructive power of the fire often includes any evidence of its cause and origin. This is particularly true in large fires as the longer and hotter a fire burns the less chance that any evidence of its causation will remain. Even the best arson investigator is unable in many fires, no matter how diligently he conducts his investigation, to determine the origin of the fire. The combination of the natural destruction of the fire combined with the process of fighting the fire in many cases makes it impossible for the cause to be determined. Anyone who has ever witnessed the scene of a large fire can understand the inherent problems of investigating a fire scene. The number of persons present at such scene and the chaos surrounding the fighting of such fire contribute to the destruction of helpful evidence and make it nearly impossible to secure the area.
There is also a jurisdictional problem relative to the investigation of possible arson cases. In many cases there is a dispute between the public investigation of a fire and a corresponding investigation by the insurance company insuring the damaged property. The fire service has the primary responsibility for investigating the scene but once they determine that the fire was accidental the insurance company is free to conduct its own investigation. In many cases the insurance investigation results in a contrary opinion and rules that the fire was intentionally set and such conclusion by the insurance company may necessitate the criminal authorities reopening their case.
Many fires are determined to be of undetermined causes because many jurisdictions lack sufficient resources to employ qualified investigators. As a result, many fire departments find themselves employing investigators who rely entirely upon their common sense and experience to make determinations as to fire origins and causes and except in the most obvious of cases the tendency is to rule that the fire is due to undetermined causes.
VII. Evidence Spoilation
The term "spoliation" refers to the loss, destruction or alteration of an object which is either evidence or potential evidence in a legal proceeding. It is not unusual in a fire investigation to have evidence be subject to spoliation.
One of the first courts in the United States to attempt to define spoliation was the California Court of Appeals. In the case of County of Solano v. Delancy, the Court defined spoliation as:"…spoliation" means failure to preserve property for another's use as evidence in pending or future litigation (County of Solano v. Delancy, 1989)."
Arson investigations are particularly vulnerable to spoliation problems. The American Courts have been sensitive to these problems and have fashioned some special treatment for situations involving potential spoliation.
Obviously, the outcome of many legal cases turn on the existence or condition of physical evidence that is either not available or has not been properly preserved. In such circumstances, the defense or claim faces a strong likelihood of failure. Arson cases are the classic example of this principle. Too often, critical evidence in such cases is missing or severely damaged and, as a result, juries are left with only witnesses' descriptions or recollections to make a determination. In recent years, the courts have recognized the serious nature of situations involving spoliation and have begun imposing sanctions on parties who may have participated in spoliation.
The remedies employed by the courts include: (1) discovery sanctions, arising under the court's "inherent powers" or under the rules of discovery; (2) application of evidentiary inferences or limitations under the rules of evidence; (3) independent tort actions for the intentional or negligent destruction of evidence; and (4) prosecution under criminal statutes relating to the obstruction of justice.
There has, to date, been no universal application of the above mentioned sanctions. Different jurisdictions have adopted their own approach and, therefore, arson investigators must be cognizant of their particular jurisdictions' method of handling evidence in situations involving potential spoliation. Failing to do so may result in disastrous result for one's investigation.
For the reasons stated, spoliation should be a concern for every arson investigator or prosecutor involved in an arson related case. The practical effect of spoliation is the loss of importance evidence that may affect the outcome of the case. All legal cases should be decided on the evidence and when importance evidence is destroyed or altered this may not be possible. It is, therefore, incumbent on everyone involved in an arson investigation to exercise their best efforts to ensure that evidence is neither destroyed nor altered so that spoliation does not become an issue.
Arson is a major social problem that costs our communities, the taxpayers, and insurance companies millions of dollars every year. In a struggling economy arson becomes an attractive alternative for many businesses and individuals desperate to rid themselves of heavy mortgage payments, the costs of a failing business, or to a possibly profit from the insurance proceeds. The use of arson for these purposes is increasing and has reached almost epidemic proportions in some of America's largest cities. Despite improved technology, more professional investigator, and increased interest in attacking the problem there is no indication that the problem is lessening. A problem that was once thought to be the result of vandalism and pyromania has now become a vehicle of organized crime and profit seekers.
Due to the nature of the crime, arson remains a difficult crime to investigate and an even more difficult crime to prove. For the reasons stated herein, and for many others, it remains so but it is hoped that through the use of improved technology and new teaching methods for the investigators the problem will begin to diminish. Society can ill afford to witness the continued growth of arson and, perhaps, by increasing the criminal enforcement measures surrounding the crime those contemplating the act of arson may be dissuaded.
County of Solano v. Delancy, 264 Cal. Rptr. 721, 724 (Californa Ct. Of Appeals 1989).
Daubert v. Merrill Dow, 509 U.S. 579 (U.S. Supreme Court 1993).
Federal Emergency Management Agency. (1994). Arson Prosecution: Issues and Strategies. Washington, D.C.: U.S. Government Printing Office.
Frye v. U.S., 293 F. 1013 (D. C. Circuit 1923).
Michigan v. Clifford, 464 U.S. 287 (U.S. Supreme Court 1984).
Michigan v. Tyler, 436 U.S. 499 (U.S. Supreme Court 1978).
NFPA. (2011). NFPA 921: Fire & Explosion Investigation. Quincy, MA: National Fire Protection Association.
Ogle, R.A. (2003). The Scientific Investigation of Arson Fires. Chicago: Exponent Failure Analysis Associates.
Technical Working Group on Fire/Arson Scene Investigation.…