The Importance of NFPA 921 and NFPA 1033

Kicking off training for the Massachusetts District 7 Fire Investigation Unit in the New Year with a crucial topic for all public and private fire investigation units - NFPA 921: Guide for Fire and Explosion Investigations and NFPA 1033: Standard for Professional Qualifications for Fire Investigators.

There are at least three main reasons why both public and private fire investigation units should be working within the guidelines of NFPA 921 and 1033.

1. The public fire service is run according to Standard Operating Procedures and Standard Operating Guidelines. Likewise, most professional organizations are not strangers to having to follow procedures. NFPA 1033: Standard for Professional Qualifications is the standard that determines the necessary requirements for investigators to be able to do the job. NFPA 921: Guide for Fire and Explosion Investigations is a guide that lays out all the steps and processes for a successful use of the scientific method to arrive at the most likely hypothesis as to the cause of the fire. In the industry of fire investigation as well as the eyes of the court, these referenced standards have become the "Standard of Care". A Standard of Care is defined as:

"the only degree of prudence and caution required of an

individual who is under a duty of care."

In other words, it is something widely accepted and required in the community or industry and is expected to be followed. If investigations are performed without following the "standard of care", the investigator may be considered acting negligently.

2. Following NFPA 1033 and NFPA 921 is imperative if a Daubert challenge or Voir Dire challenge is brought against an investigator.

a. “Daubert” Motion: In United States federal law, the Daubert standard is a rule of evidence regarding the admissibility of expert witness testimony. A party may raise a Daubert motion, a special motion in limine raised before or during trial, to exclude the presentation of unqualified evidence to the jury. The Daubert trilogy are the three United States Supreme Court cases that articulated the Daubert standard:

• Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), which held that Rule 702 of the Federal Rules of Evidence did not incorporate the Frye standard as a basis for assessing the admissibility of scientific expert testimony, but that the rule incorporated a flexible reliability standard instead;

• General Electric Co. v. Joiner (1997), which held that a district court judge may exclude expert testimony when there are gaps between the evidence relied on by an expert and that person's conclusion, and that an abuse-of-discretion standard of review is the proper standard for appellate courts to use in reviewing a trial court's decision of whether it should admit expert testimony;

• Kumho Tire Co. v. Carmichael (1999), which held that the judge's gatekeeping function identified in Daubert applies to all expert testimony, including that which is non-scientific.

b. “Voir Dire” Challenge: In the United States, voir dire is the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury. "Voir Dire is the process by which attorneys select, or perhaps more appropriately reject, certain jurors to hear a case." It also refers to the process by which expert witnesses are questioned about their backgrounds and qualifications before being allowed to present their opinion testimony in court. As noted above, in the United States (especially in practice under the Federal Rules of Evidence), voir dire can also refer to examination of the background of a witness to assess their qualification or fitness to give testimony on a given subject.

These challenges test the method an investigator or expert has applied the science. In order to "pass" these challenges brought against an investigator, he/she must have followed proper guidelines and standards and provide an expert opinion only on topics that his/her education, training, and experience can justify.

3. Following NFPA 921 and NFPA 1033 allows investigators to have the highest possible chance of getting the correct answer. Tragically, in the history of fire investigation there have been investigators that have operated outside of the documents, process and method and have succesfully assisted with incorrect prosecutions. The science of fire investigation is always changing. Part of the scientific method involves hypothesis testing. If it can not be tested, the scientific method demands the hypothesis be re-evaluated. This process continues until the hypothesis can be repeatably tested successfully. Many times, the simplest answer is the answer.

By continuing education, following standards, guidelines and the scientific method, investigators have the highest liklihood of discoverying the truth.