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In the coming years, those of us involved in the investigation of fires are going to see a change in the way business is conducted. In 1993 the Frye Standard, which measured the reliability of an expert’s opinion, was abolished and in its place the court created the Daubert Standard.
A simple explanation of the difference between the two was that Frye relied on the general acceptance of the investigative methodology by others in the field, established by experience or time-tested practices. Daubert no longer uses general acceptance, but instead relies on scientifically proven and peer reviewed data. The conclusions of the expert should be provable and reproducible. Experience alone is no longer a key component of the competency of the opinion.
To make it worse, the trail judge acts as the gatekeeper and must be convinced that the expert is qualified. The following must be answered to satisfy reliability under Daubert; has the theory been tested? Is there a known rate of error? Has the theory been subjected to peer review? Has the theory gained general acceptance? The Scientific Method, described in NFPA 921 is recognized as the measure of reliability for fire investigations.
At any time during litigation, a Daubert Challenge can be demanded and the expert will have to describe the methodology and support of every step of the origin and cause investigation.
As fire company officers, in the absence of a fire investigator response, you are the fire investigator, proven by the origin and cause box in your NFIRS report. If a fire that you responded to and handled without a fire investigator results in litigation, you will be expected to be an expert who can qualify under the Daubert Standard.
The attorneys, courts, and insurance companies believe that if you determined an origin and cause, you can demonstrate the methodology used to form that opinion.
If you notice current fire investigation training on a state and national level, you will see more and more scientific components in the curriculum. Fire modeling and calculations that demonstrate the fire behavior that we observe are working their way into our common language.
More and more case law is occurring that confirms that experience alone will not get you through today’s litigation. There are excellent investigators who are experts at reading fire patterns and determining origin and cause who will have difficulty in coming years. They are right, but can’t articulate and demonstrate scientifically why that is.
Civil and criminal attorneys are obviously aware of this trend, and we should be to. How many reading this, most of who determine origin and cause to some degree, know that there is an NFPA 1033 Professional Qualifications for Fire Investigator published every three years? How many have read NFPA 921 Guide for Fire and Explosion Investigations? While these texts are probably not on the nightstands of most fire personnel, those of us watching the developments are picking them up more often.
Take this challenge, go to www.cfitrainer.net and create an account. The training is sponsored by the International Association of Arson Investigators (IAAI) and is free. There are currently two online classes available, each will take a few hours to complete and at the end, you can take a test and print a certificate of completion. Not coincidentally, the current subjects available are Introduction to Fire Dynamics & Modeling, and MagneTek: A Case Study in the Daubert Challenge.
If you are already familiar with NFPA 921 and Kirks Fire Investigation, get a copy of Forensic Fire Scene Reconstruction by John DeHaan and David Icove. This is the next level of fire investigation, but this is where we are going. Like much of the progress and technologies we have seen over the last twenty years, the science of fire investigation is moving fast. You just need to decide if you want to step out of the way, or get on board.
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