Fire Safety and Technology Editorial
Fire Investigation
Recent publicity about the case of Cameron Willingham caught my eye
and I feel the need to comment on this. Cameron Willingham was the victim
of a home fire on December 23, 1991, in Texas. That fire claimed the
lives of his three very young children. Following fire investigations
and a trial, Mr. Willingham was convicted of arson, and murder, and
was eventually executed on February 17, 2004. Dr. Craig Beyler (Hughes
Associates) was asked to investigate the fire and, after careful analysis
(http://tinyurl.com/ybplr2t), concluded that it was an accident and
not arson. This case then became a "cause célèbre"
among opponents of the death penalty after the report of Dr. Beyler
was published a few weeks ago.
I am not interested in debating the merits (or lack of them) of capital
punishment but I am very interested in the role of fire investigators
in criminal trials.
There is usually a difference between a fire investigator (who normally
is the cause and origin expert and looks at a fire scene to determine
where and how a fire started) and a person who provides evidence on
how a fire progresses and what would have happened if a different type
of material or product was involved (in terms of full disclosure, I
often work as one of the latter). However lines are often crossed and
many fire investigators go beyond the analysis of the initial fire scene
and those who study fire progress and materials are often also asked
to give opinions about cause and origin.
Fire investigators follow guidance from NFPA 921, Guide for Fire and
Explosion Investigations, a consensus document, first issued in 1992
(after the Willingham fire). Professor Vincent Brannigan (Univ. Maryland)
and Dr. Elizabeth Buc (Fire and Materials Research Lab.) published a
paper at the 2009 Fire and Materials conference that addressed some
of the concerns with fire investigators and NFPA 921 and is highly critical
of fire investigators who rely only on that guide. The paper is entitled:
"Forensic Fire Investigation: An Interface of Science, Technology
and Law". The abstract states, in part: "Forensic fire investigation
(FFI) is an extremely complex field combining science, technology and
law. Advances in the fire sciences over the past 20 years have challenged
some of the most widely held beliefs about purported "evidence"
of intentionally set fires or causation in fire related products liability.
NFPA 921 is unquestionably an advance in the collection of fire scene
documentation and evidence collection for developing a putative explanation
of a fire's cause. Changes in the law of evidence have demanded much
higher levels of proof for forensic expert testimony. Determining the
origin and cause of a fire for legal purposes is not itself a field
of 'science' at least as that term is used in the scientific or legal
community but FFI often uses the tools of science and engineering to
a greater or lesser extent depending on the circumstances. In NFPA 921,
the guide states that it uses the 'scientific' method when in fact it
is at best … the 'best explanation' of a phenomenon in the opinion
of the person doing the reasoning."
On the other hand, some fire investigators continue to believe that
"NFPA 921 continues being a great document for our community. Fire
investigators, regardless of their formal educational achievements are
getting training on the how's and whys due in large part to NFPA 921.
In addition, the legal community has used NFPA 921 as a road map in
questioning experts as well as a tool to get the expert bounced from
a case if they have grossly or in some way deviated from its structure."
It has also been said that "It is apparent that investigators
involved in the Willingham case relied completely on experiental signatures
and created myths that had no scientific foundation. The basis of the
problem lies in the standard of fire science, particularly fire dynamics
in fire investigation training given to practitioners in the 1970s and
1980s, and, to some extent the admittance of the evidence by the legal
profession. There are still a lot of people operating as fire investigation
practitioners who rely on indicators (and myths) learnt through experience
and/or on the job training without sufficient scientific foundation
to support the reliability of the indicators and fire patterns. In order
to provide the level of analysis at a scientific level and the inputs
required for adequate modeling of a fire requires the investigator to
have a sound knowledge of fire dynamics."
These are a few opinions (which I have purposefully not attributed)
representing various degrees of satisfaction and/or concern with the
degree of competence of fire investigators. To some extent, of course,
cost is a factor: prosecutors and public defenders (of defendants with
scarce means) are rarely able to find/use the best fire investigators.
Many sources (particularly older ones) on which fire investigators tend
to rely on promote myths that have long since discredited. More modern
sources incorporate some of the advances in fire science. However that
is not the full issue: however well a person has been trained, such
training does not offer a guarantee that he/she will not commit blunders
(willingly or unwillingly).
The criticism of NFPA 921 is also not totally fair because it is clear
that the technical committee responsible for its development works hard
at trying to bring science into the guide. NFPA 921 is progressing in
doing away with some of the myths that fire investigators use, but there
is still a long way to go. Moreover, the report by Dr. Beyler (and he
is a member of the NFPA 921 committee) makes it clear that guidance
from NFPA 921 was not properly followed by the Willingham fire investigators,
but, of course, much of that guidance was not available until after
the incident.
Unfortunately, the case of Cameron Willingham is just an extreme example
of the tragic consequences of acting on the opinions of fire investigators
of less than full competence. However, such mistakes are far more frequent
than is commonly believed (as I can attest from personal experience).
Testimony is often tainted by a desired outcome, which is fine as long
as it stays on the correct side of the truth.
Those of us who work in the field of fire safety are, de facto, entrusted
by officials, and by the legal profession, with a high degree of responsibility:
we need to "do the right thing" and to testify honestly (and
not only in a court setting). This is essential so we can all collectively
advance public fire safety, and valid outcomes of legal proceedings,
without creating, or promoting, injustice.
Marcelo M. Hirschler
