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Daubert Rule in Fire Investigation


Since 1923, the United States centralized courts have been employing the legal rule established in the case of Frye vs. the United States for admittance of expert testimony. The Frye rule defined a requirement in which the data and methods used by experts in creating an opinion should be generally accepted in other experts’ situations and in a similar discipline. The decree was unanimously approved given that it was applicable to state as well as national courts for several years. In fact, some states still use the standard even today. In fiscal 1993, another new standard for admission of the testimony was developed and has been increasingly adopted by state courts (IAAI 148).

Chandler claims that fire scene investigation is widely regarded as one of the key areas where the novel rule is commonly known as the Daubert rule often becomes applicable (492). The rule has made a substantial impact in terms of admissibility and evidence presentation. Thus, this paper intends to discuss the impacts of this statute with respect to testimony presented by fire investigation experts. Despite the clear definition of Daubert rule, most of the impacts are associated with scientific reliability and the validity of investigators’ evidence as well as the way in which testimonies should be presented.

The admission of expert testimony

Unlike conventional rules of evidence which permitted admissibility under defined guidelines, the Daubert rule is more liberalized as it recognizes that scientific truth does not result from scientific consent but the development of scientific know-how paves the way for its universal acceptance. Therefore, the admission of expert testimony is tested by considering a number of reliability factors which include testing the reliability of the theory used, its subjection to peer review, potential rate of error, and the factual level of theory. These factors form the basis through which the admission of expert opinion is measured for scientific reliability and validity (Chandler 492). As a result, the expert has more resilience in presenting the opinions and conclusions.

The traditional rule that supported general acceptance is somewhat perceived as a determining factor but cannot solely be used for admissibility. Factors considered in the new rule have in most cases determined the admission of testimonies. Trial judges sometimes may reject expert opinion if it proves to be too prejudiced or tentative. Daubert rule however has given experts witness greater autonomy in presenting the justifications of their testimonies (IAAI 148). It has admitted expert opinions more freely with basis on the new and emerging theories in science. Although judges eventually determine the validity and reliability of these testimonies, they act as ‘gatekeepers’ and must first assess the reliability of testimonies and methods used before they get to hear the testimony. This is usually achieved through specific stages of testimony presentation.

Levels of proof

Under the Daubert rule, the presentation of an expert’s testimony is defined by several steps or attainments before the testimony is considered valid. First and foremost, the expert witness must prove to be qualified in that field which is determined by academic achievement, experience, orientation, and so on. For instance, in the arson case United States v. Markum, the jury found the admissibility of the investigator’s testimony. It was appropriately admissible that the fire resulted from arson and the judgment was fundamentally based on the education and experience of the investigator in suppressing fires. The fire investigator had attended an investigation training school and had also worked as a firefighter for 29 years. Secondly, the expert must demonstrate that the opinions are backed by necessary scientific credibilities such as theories and principles. Finally, the level of certainty of the opinions presented by the expert witness must be demonstrated (IAAI 148). With these elaborate levels of proof, many experts including fire investigators have been faced with the challenge to present opinions that have the kind of scientific reliability and viability required.

In many areas of expert testimony, the adoption of the Daubert rule has resulted in courts obliging the witnesses to demonstrate his/her opinions to a certain level of scientific conviction. In cases involving fire litigation, a number of courts have required the expert witness to demonstrate opinions to the level of establishing the origin as well as the cause of that fire. In Commercial Union Insurance Co versus Basfield, the defense argued that the conclusion presented by the fire investigator illustrating that the probable cause of the fire was the sloppy use of smoking materials was not based on the required level of scientific certainty and should be dropped down.

However, IAAI claims that the jury rejected the argument on the reason that a fire destroys much of the direct evidence and an investigator must depend on anecdotal evidence. The fact that the investigator determined the probable cause of the fire with 50% probability, made the proof to be adequate. Though the methodology is no appropriate for a criminal case, the testimony was considered sufficient for a subrogation case. Under the Daubert rule, a criminal case required a definite determination of the cause. These and other dissatisfactions in fire litigation have raised a fierce debate in the application of the rule in this context.

The debate

According to Chandler assertions, the use of Daubert rule in fire investigation has raised a fierce debate which initially revolved around the questioning of the court consideration of the origin and cause of the fires as scientifically supported evidence or technically supported evidence (492). Supporters of the scientific method of fire investigation reject all suggestions that fire investigations have nothing to do with science. They point out various misapprehensions used previously in fire investigations which could only be revealed when the scientific approach was established. They see the Daubert rule as the only means to prevent the recurrence of inappropriate methods used by investigators who did not have obligatory expertise and training.

Conversely, enthusiasts of the view that fire investigations can appropriately be supported by technical evidence argue that the concept has no relation to science as it uses elements of several disciplines. The exploitation of the expression technical within Daubert’s framework by believers is intended to convey the permissible disparity but not a methodological one (IAAI 148). Their arguments do not concern the lack of scientific theories and their application but the human components associated with the analysis and interpretation of evidence that leads to the opinion about the origin and cause of the fire. These debates have resulted in NFPA revising fire scene investigation guidelines.

NFPA response

Since the establishment of the Daubert rule, NFPA has made significant modifications to the fire scene investigation guideline for investigators. In 1995, the institution changed the ‘scales of challenges’ to the ‘scales of confidence’ which were then to be recommended. References to civil and criminal litigations have also been deleted from the list. Indeed, the investigator has the freedom to look for a proper level of confidence in his/her findings and opinions. Nevertheless, the legal competence of a conclusion is for the jury to decide (IAAI 148).

After acquiring the appropriate level of confidence, the investigator is faced up with an unavoidable challenge to his/her findings and opinions in which they are founded on circumstantial evidence but not on direct proof. This is an intrinsic problem due to the nature of the investigation which is an issue that NFPA supports through other sources such as those guidelines that require the investigator to base his/her opinions on empirical data only. Since investigations are not solely empirical, the courts have responded to this dilemma by upholding circumstantial evidence to meet the legal demands of the proof (Chandler 492). While a reasonable level of scientific conviction is not synonymous with empirical conviction, the tactics used by courts vary greatly. This has left the fire investigator to rely on his ability to convince the jury in demonstrating the scientific reliability and validity of the conclusion made.


The observed impacts of the Daubert rule are associated with fire investigators’ proof of scientific reliability and validity of their opinions. The rule ideally requires testimony presentation to be a systematic process. The requirement for admissibility of the expert opinion have changed when compared to the conventional standard as well as the levels of proof which have become more comprehensive and demanding. As a result, debates have emerged on the scientific relation of fire scene investigations and the need for Daubert rule. These in turn necessitated NFPA to modify its guidelines to support scientific approach of fire investigations and the legal implications that might affect expert investigators. However, the major task is left for the investigator to convince the jury of the reliability and viability of the opinion presented.

Works Cited

Chandler, Russell. Fire Investigation. Independence, KY: Cengage Learning, 2009. Print.

International Association of Arson Inves (IAAI). Fire Investigator: Principles and Practice to NFPA 921 and 1033. Sudbury, Massachusetts: Jones & Bartlett Publishers, 2010. Print.

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