Liquid evidence, on the other hand, usually is put into unbreakable, airtight, sealed containers. The same is true for solid forms of evidence that may contain volatile evidence, such as charred remnants of a fire that are believed to contain residues of hydrocarbon accelerants (substances such as gasoline or kerosene that make a fire burn faster and hotter and are commonly used by arsonists). Left unsealed, these residues can evaporate before they are tested. Clean paint cans and tightly sealed jars work well for evidence in solid form. Moist or wet biological evidence must be placed in nonairtight containers so that it can air dry; otherwise, the moisture can cause mold, mildew, and bacterial growth, which, in turn, lead to decay and ultimately destroy the sample. Bloody clothing often is hung up and allowed to thoroughly air dry. After the biological evidence is dry, it is repackaged into sealed containers.D. P. Lyle, Forensics for Dummies (2nd edition ed. 2016)
Evaluating scenes where fire or explosions have occurred is difficult, at best. This task usually falls to specialized arson investigators, who are trained in suspicious fire analysis.D. P. Lyle, Forensics for Dummies (2nd edition ed. 2016)
The introduction and persistence of mythology in fire investigation is an unfortunate part of the history of the discipline, and is an area about which many fire investigators do not like to think. Some would like to keep these dirty little secrets locked away in a closet in the hope that people will gradually forget about them and they will not be a problem anymore. It is this failure to address a serious problem in the training and education of fire investigators that causes the myths to persist. The unfortunate consequence is that innocent lives are destroyed by well-meaning but ignorant investigators.John J. Lentini, Scientific Protocols for Fire Investigation 433 (2006).
In addition to an investigator’s training, tools may be used to help with sample selection at a fire scene. Accelerant detection canines and hydrocarbon detectors may be used by some investigators to help locate possible ignitable liquids. Though both canines and hydrocarbon detectors can offer excellent sensitivity, they generally lack the selectivity offered by gas chromatography–mass spectrometry (GC-MS) in the laboratory, due to the abundance of interferences at a fire scene. It is important to stress that canines, hydrocarbon detectors, and any on-scene detection methods are considered presumptive tests for ignitable liquids. Any on-scene alerts must be confirmed by laboratory analysis.Jamie Baerncopf & Sherrie Thomas, Introduction to Fire Debris Analysis, in Forensic Analysis of Fire Debris and Explosives 45-74 ( Kenyon Evans-Nguyen & Katherine Hutches eds. 2019).
Fire science, a field largely developed by lay “arson investigators,” police officers, – or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases, notwithstanding that both criminal and civil courts are required to operate under the same exclusionary rules for expert evidence. Judges are capable of ensuring that the forensic science evidence they admit at trial is reliable in both criminal and civil proceedings. In addition, the law mandates that they do so. The Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. demand the application of the same standards to vet the admissibility of expert evidence in criminal and civil cases. Moreover, Kumho Tire v. Carmichael expands that mandate to exclude capricious forensic evidence regardless of whether it is characterized as scientific or technical. Unfortunately, thirty-one states have failed to embraced the holding of Kumho Tire. As a result, litigants are not entitled to raise Daubert challenges to fire evidence that courts deem technical, rather than scientific, knowledge in the overwhelming majority of American jurisdictionsValena E. Beety & Jennifer D. Oliva, Evidence on Fire, 97 N.C. L. Rev. 483 (2019).
Over the past 15 years, fire investigation has evolved into a science-based endeavor as more and more research has been conducted in the area of ignition, fire growth, and material performance. No longer can a fire investigator base his or her opinion about the cause of a fire on unsupported beliefs and mere experience. The opinion must be sound and stand the challenge of reasonable examination. Several recent court decisions have examined the methods of experts including fire investigators. These decisions have resulted in the further application and understanding of the scientific method as it applies to fire investigation. Investigators are encouraged to systematically follow the scientific method when examining the fire scene. The National Fire Protection Association’s Guide to Fire and Explosion Investigations (NFPA 921) defines the scientific method as “…the systematic pursuit of knowledge involving the recognition and formulation of a problem, the collection of data through observation and experiment, and the formulation of testing and hypothesis.”Gregg A. Hine, Fire Scene Investigation: An Introduction for Chemists, in Analysis and Interpretation of Fire Science Evidence 44-45 (José R. Almirall & Kenneth G. Furton eds., 2004).
Some of the most significant changes in fire investigation in the last 15 years have been the result of legal interpretations of the Daubert, Kumho Tire, Joiner, and Benfield decisions (which will be discussed in some detail in Chapters 16 and 17). Today’s fire investigator must demonstrate to the court that he or she has the training and qualifications to offer an opinion about the fire, has data (information) to support that conclusion, has followed an appropriate protocol in the investigation and decision-making process, and has followed, in general, the scientific method of inquiry. A basic protocol is outlined in the NIJ Guide described earlier. More detailed protocols are discussed in Forensic Fire Scene Reconstruction and NFPA 921: Guide for Fire and Explosion Investigations Protocols will be discussed in Chapters 7 and 8. Note that a protocol is not a cookbook with all the steps laid out in mandatory order but an outline of a systematic, comprehensive approach to scene investigation. The complexities encountered in fire investigation are sometimes overwhelming to the investigator, but patience and adherence to fundamental scientific principles of combustion, fire behavior, and heat transfer will usually result in a reasonable and defensible diagnosis of the fire if there are sufficient reliable data. These elementary principles of combustion, fuels, and heat effects, as well as the equally important principles of scientific investigation, are the concerns of this book.Kirk’s Fire Investigation, 7th Ed. (John D. DeHaan & David J. Icove eds., 2012)
Canines, on the other hand, can be trained to discriminate between accelerants and burned plastics, foam-backed carpeting, etc., and naturally scent to source (low to high concentration), pinpointing the highest concentration of accelerant residue available. After a canine alerts to a particular location, the fire debris from that area as well as a comparison sample away from this location is collected and placed inside a paint can, glass jar, or plastic bag with the former the most commonly employed and the latter also increasing in popularity.5 Each container has drawbacks with the cans susceptible to corrosion from wet samples, glass jars susceptible to breakage, and plastic bags susceptible to punctures. After collection, the containers with the collected debris can be checked by the canines or electronic sniffers to ensure that adequate samples are collected.Kenneth G. Furton & Ross J. Harper, Detection of Ignitable Liquid Residues in Fire Scenes: 3 Accelerant Detection Canine (ADC) Teams and Other Field Tests, in Analysis and Interpretation of Fire Scene Evidence (Jose R. Almirall & Kenneth G. Furton eds., 2004).
- Lentini, John. “Presumption of Innocence.” Fire/Arson Investigations (forum), August 10, 2008. Contains “list of citizens whose lives were permanently changed or even destroyed by fire investigators who claimed to have ‘no presumption.'”
- Ray Girdler (Exonerations Registry [“In 1990, a trial court granted Girdler a new trial after arson experts testified that new scientific developments showed that the indications of arson relied on by the forensic experts at his original trial could easily have been produced by an accidental fire. The jailhouse snitch admitted that he had lied when he said Girdler admitted setting the fire.”])
- Barbara Bylenga
Gerald Wayne Lewis
- Lime Street fire (Gerald Wayne Lewis).
- Alexander, Julienne. “527 Lime Street.” Criminal (Podcast), March 6, 2020 [transcript] (“Police arrested Gerald Lewis that night one investigator said that his description of how the fire spread from one couch cushion to the entire house. So quickly quote didn’t seem realistic. He was charged with one count of arson six counts of first-degree murder and one count of manslaughter. His wife sister was pregnant.”).
Beverly Jean Long
- Possley, Maurice. “Arson Myths Fuel Errors.” Chicago Tribune. Accessed May 31, 2020.
Weldon Wayne Carr
- L: “wrongly convicted (and is still serving time) for setting the accidental fire that killed her young son.”
Kenneth and Ricky Daniels
- L: “wrongly accused of setting a fire that killed her three children”
- White, Ed. “Michigan Man Cleared of Murder Now Fights for Compensation.” Associated Press, March 4, 2018 (” David Gavitt spent 26 years in prison for the deaths of his wife and two daughters before a prosecutor agreed that the evidence behind his arson conviction was no longer credible. The case helped inspire a Michigan law aimed at compensating the wrongfully convicted.”)
- Terri Strickland
Han Tak Lee
- (“charged with first degree murder and arson after his twenty-year-old mentally ill daughter died in a cabin fire at a religious retreat in the Pocono Mountains.”) Han Tak Lee v. Glunt, 667 F.3d 397 (3d Cir. 2012). 1Han Tak Lee v. Tennis, No. 4:08-CV-1972, 2014 WL 3894306, at *1 (M.D. Pa. June 13, 2014) (“This proverb, inscribed at the University of Pennsylvania Law School on the statue of Hseih-Chai, a mythological Chinese beast who was endowed with the faculty of discerning the guilty, is a fitting metaphor for both the progress of the law and the history of this case.”), adopting reportand recommendation sub nom. Lee v. Tennis, No. 4:CV-08-1972, 2014 WL 3900230 (M.D. Pa. Aug. 8, 2014), affd sub nom. Han Tak Lee v. Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015).
(“In their report on the Dougherty case, Lentini and Pisani say they believe Philadelphia Assistant Fire Marshal John Quinn, who led the initial probe, relied on outdated arson investigation techniques. In his 1985 report, Quinn had determined three fires took place on the first floor of Dougherty’s brick home: one by the sofa, another by a love seat, and a third under the dining room table. Quinn concluded only a person could have set the fire in three separate places.”) Chen, Stephanie. “Junk Science? Another Inmate on Death Row Fights to Disprove Arson.” CNN, August 12, 2010.
Cameron Todd Willingham
- Wikipedia: Corsicana, Texas man executed at Huntsville in 2004, convicted of murder by arson based on faulty “fire science”.
- Grann, David. Trial by Fire, The New Yorker, August 31, 2009 (« He was soon joined on the case by one of the state’s leading arson sleuths, a deputy fire marshal named Manuel Vasquez, who has since died. Short, with a paunch, Vasquez had investigated more than twelve hundred fires. Arson investigators have always been considered a special breed of detective. In the 1991 movie “Backdraft,” a heroic arson investigator says of fire, “It breathes, it eats, and it hates. The only way to beat it is to think like it. To know that this flame will spread this way across the door and up across the ceiling.” Vasquez, who had previously worked in Army intelligence, had several maxims of his own. One was “Fire does not destroy evidence—it creates it.” Another was “The fire tells the story. I am just the interpreter.” He cultivated a Sherlock Holmes-like aura of invincibility. Once, he was asked under oath whether he had ever been mistaken in a case. “If I have, sir, I don’t know,” he responded. “It’s never been pointed out.” »).
Ernest Ray Willis
- Wikipedia – exonerated after 17 years on death row (Texas) (“The DA said that new investigators labeled the fire’s cause as undetermined and could not find any evidence to substantiate an arson case. Willis was released from prison in October 2004.”)
- Hall, Michael. Death Isn’t Fair, Texas Monthly (December 2002) (“As Ernest Willis tells it, he woke up in a house on fire. It was around four in the morning in Iraan, an oil-field town in West Texas, on June 11, 1986.”)
In State v. Schultz, 2002 UT App 366, 58 P.3d 879, we concluded that, to be admissible, testimony about canine alerts on accelerants must either be corroborated by laboratory analysis or satisfy the test for admissibility of expert testimony. Id. ¶ 39. In Schultz, the prosecution’s witnesses testified about a dog’s alerts at the crime scene even though laboratory results for those samples were negative for accelerants. Id. ¶¶ 15-16. Although the Schultz court ultimately held that the trial court’s admission of the dog’s alerts was harmless because of the “significant amount of other evidence to support [the defendant’s] conviction,” id. ¶ 40, it first concluded that “if testimony about canine detection is offered as substantive proof of the presence of an accelerant, without laboratory confirmation, [a] three-part analysis … is required because such evidence is based on novel scientific principles and methods,” id. ¶ 39. Specifically, where the State seeks to prove the presence of accelerants by testimony that an accelerant detection canine alerted without also providing corroborating laboratory results, the State must prove that (1) the alert is “inherently reliable,” (2) the techniques used were “properly applied to the facts of the particular case by sufficiently qualified experts,” and (3) the evidence of the alert is “more probative than prejudicial.” Id. ¶¶ 27-29 (citations and internal quotation marks omitted). If the State does not satisfy these three elements, defense counsel should object to the admission of testimony about the alert on the authority of Schultz, unless there is some reason the evidence would benefit the defendant. See Doutre, 2014 UT App 192, ¶ 24, 335 P.3d 366.Landry v. State, 2016 UT App 164, 380 P.3d 25 (2016)
- Gerald Hurst – [L]: “consultant based in Austin, Texas, has analyzed numerous fires and ruled out arson to help free several defendants. The most recent was Texas Death Row inmate Ernest Willis, who walked out of prison this month after Hurst’s analysis found “not a single item of evidence” that a 1986 fire Willis was convicted of setting was arson. “
- John J. Lentini [Google Scholar] (“Our profession has a long history of wrongful prosecutions (or wrongful accusations of arson in the civil arena), most of which could have been avoided if the original investigators carried a presumption of accidental cause into the fire scene. In almost all of these cases, somebody saw “pour patterns” where none existed, or evidence of “multiple points of origin” where everything had burned together.”)
- John D. De Haan (Kirk’s Fire Investigation) (statement to Texas Forensic Science Commission [ parts 1 | 2 ])
- NFPA 921: Guide for Fire and Explosion Investigations
- NFPA 1033: Standard for Professional Qualifications for Fire Investigator.
- Comm. on Identifying the Needs of the Forensic Sci. Cmty., et al., Nat’l Research Council of the Nat’l Acads., Strengthening Forensic Science in the United States: A Path Forward (2009)
- Lentini, John. “‘Progress’ in Fire Investigation: Moving Trom Witchcraft and Folklore to the Misuse of Models and the Abuse of Science.” Proceedings of the 4th International Symposium on Fire Investigations Science and Technology (ISFI), 2010.
- Jennifer E. Laurin, Remapping the Path forward: Toward a Systemic View of Forensic Science Reform and Oversight, 91 Tex. L. Rev. 1051 (2013).
- Lentini, John. “The Evolution of Fire Investigation and Its Impact on Arson Cases.” Crim. Just. 27, no. 1 (2012): 12. (similar)
- Search terms: “pour pattern”, “Spalling of concrete”, “crazed glass”, “arson myths”, “alligator patterns”
References [ + ]
|1.||↑||Han Tak Lee v. Tennis, No. 4:08-CV-1972, 2014 WL 3894306, at *1 (M.D. Pa. June 13, 2014) (“This proverb, inscribed at the University of Pennsylvania Law School on the statue of Hseih-Chai, a mythological Chinese beast who was endowed with the faculty of discerning the guilty, is a fitting metaphor for both the progress of the law and the history of this case.”), adopting reportand recommendation sub nom. Lee v. Tennis, No. 4:CV-08-1972, 2014 WL 3900230 (M.D. Pa. Aug. 8, 2014), affd sub nom. Han Tak Lee v. Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015).|