Arson Jurisprudence: Going Up in Flames

The relationship between forensic science and the courts has been a tenuous one.  Seemingly every few years a scientific breakthrough combined with ambitious journalism reveals that some sort of agency or court has been investigating or sentencing innocent people using techniques that are nonsensical.  These techniques can range from hair sample analysis to bite mark analysis.  Although multiple facets of forensic science have been thoroughly disproved or discredited by rigorous scientific methodology, one of the most incendiary misuses have persisted throughout the years: arson investigation.

One of the primary issues arising within arson investigation is the difficulty in understanding fire damage and its implications.  A fire can simultaneously create new evidence while destroying all previously present evidence.  For this reason, one would believe it takes special training and certification in order to testify in a courtroom on the topic of arson.  Similarly, one would expect these arson investigators to meet the scientific expert testimony requirements set forth in Daubert v. Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993).  Unfortunately, the “fire science” experts are typically untrained former police officers or firefighters who have no science backgrounds whatsoever.  Because of this general lack of scientific rigor, arson investigators often end up reading a fire scene similar to a self-purported psychic reading a the dregs of her tea leaves.  This has, in turn, led to a number of problems in both civil and criminal law.

In Michigan Millers Mutual Insurance Corporation v. Benfield, 140 F.3d 915 (11th Cir. 1998) the 11th Circuit wrestled with an expert’s designation of an incendiary fire, i.e. intentionally set fire.  The court eventually decided that the conclusion should not be believed ipse dixit of the expert.  Furthermore, homicides inappropriately attributed to arson have plagued the justice system for decades prior to the new millennium.  While the court in Benfield was able to identify dangerously illogical and inconsistent testimony from the expert witness, other arson suspects have not been that lucky.

A famous case (known as The Lime Street Fire) involved a fire investigator, who was convinced his suspect was an arsonist, managed to change arson science forever.  The suspect in the case claimed a lit cigarette igniting a couch accidentally caused the fire; the prosecution claimed, on the other hand, the suspect set the house ablaze at multiple points with the help of an accelerant.  The enthusiastic fire investigator had an opportunity to recreate the exact circumstances of the fire in a nearby abandoned building.  When the investigator set the fire in exactly the same way as the defendant claimed (using a lit cigarette on a couch), the result precisely matched the scene of the original supposed ‘arson.’  As a result the suspect was exonerated of six counts of first-degree murder; the prosecutor’s case went up in smoke.  While some convictions are more recently being overturned, the fuel for fire science misuse is still plentiful.  Unaware judges, overzealous prosecutors, unknowledgeable fire investigators, and unlucky defendants all lead to a combustible amalgam of circumstances that can easily lead to an arson determination that has the potential to burn through a life savings or put an innocent man behind bars.

Under the Daubert doctrine and the Federal Rules of Evidence in general, judges are meant to be the gatekeepers for scientific knowledge entering into the court room by means of expert witnesses.  One significant problem with the judge acting as the arbiter for scientific knowledge is that the judge may not be particularly familiar with the science at hand.  A jury will not necessarily be able to discern “junk” science from legitimate scientific principles and the counsel will, unfortunately, be indifferent as long as the conclusions fall on their own side.  A judicial gatekeeper without the knowledge to identify what is and is not scientifically acceptable under Daubert is a court’s worst nightmare.  In order to correct this potential injustice, judges should hear cases depending on their comfort level with particular scientific principles.  This same adjustment already exists in the context of patent cases, where some judges with scientific or mathematical backgrounds receive priority for those cases within the purview of their specialty.  This same idea should cross over to other cases wherein the key evidence is presented in a purportedly scientific manner.

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