 NFPA 921: A Double-Edged Sword
by Guy E. Burnette, Jr., Esquire
Contents
Introduction
In the few short years since its introduction, NFPA 921 has become the
most controversial and widely discussed publication in the field of fire
investigation. NFPA 921 was intended to establish a new standard of professional
competence in the investigation of fire incidents. It was designed to create
a systematic framework for the investigation of fires using the latest technologies
and procedures representing the "state of the art". It has unquestionably
accomplished those objectives. The final product prescribes all of the proper
procedures and methodologies for the "scientific method" of fire
scene investigation. However, it goes on to criticize long-standing myths
and improper practices in fire scene investigation, while raising uncertainty
about any conclusions which have not been confirmed in the laboratory -
even when all of the proper procedures under NFPA 921 have been followed.
Conceived as a tool or "guide" for the fire investigator, it turned
out to be much more than that. It became a strongly worded criticism of
improper methodologies and a ready-made challenge to any conclusions unsupported
by convincing scientific proof. Thus, it became a double-edged sword equally
adept at supporting the investigative methods established by NFPA 921 while
condemning those which are viewed as improper or scientifically unproven.
It is a defensive sword to shield those who have followed the mandates of
NFPA 921, but an offensive sword to attack those who have failed to meet
the standards of NFPA 921.
The use of NFPA 921 as an offensive weapon is the most controversial
issue surrounding this document. It is the most often-cited criticism raised
by its detractors and it is unquestionably the most common strategy for
the use of NFPA 921 in the courtroom. Whenever the subject of NFPA 921 is
raised, it is an issue which must be confronted.
The use of NFPA 921 as a sword was both predictable and inevitable. Any
document which purports to establish the "right way" is destined
to be used to discredit an alternative approach. Almost by definition, proclaiming
the "right way" means any other method is the "wrong way".
This is common to all textbooks, manuals or guides. In that respect, the
problem is nothing new.
What sets apart NFPA 921 from other textbooks, manuals or guides is the
tone and language of its content. It seems almost as if it was designed
for use as an offensive weapon as much as its professed purpose of a "guide".
Much of the document is a lesson in how not to investigate a fire, rather
than how to do the job. It is a negative, often derogatory critique of improper
investigative practices and serves as a virtual script for cross-examination.
It advocates the use of objective, scientifically verifiable methods of
analysis to the point of almost disregarding any subjective, experience-based
methodologies and conclusions. Even as the document recognizes fire scene
investigation is both art and science, it clearly advocates scientific data
over professional opinion drawn from experience and training. While few
would argue with the concept of seeking scientific confirmation, the absence
of such confirming evidence may be due to any number of variables which
can arise in a fire scene investigation. Nfpa 921 seems to disregard the
possibility of some valid explanation for the lack of scientific confirmation
and presumes it to mean the investigation is flawed.
As it prescribes a science-based methodology requiring objective confirmation,
it repeatedly challenges, qualifies, limits or even rejects any opinions
and conclusions drawn from personal observation and experience alone. Those
observations and conclusions are deemed uncertain at best and presumptively
erroneous at worst. Information gathered at the fire scene from first-hand
observation is viewed as unreliable under NFPA 921 unless and until it has
been conclusively confirmed by scientific testing at the laboratory. Anything
which has not been scientifically confirmed and validated is inherently
suspect. Reasonable doubt is suggested throughout the document.
The use of NFPA 921 as a sword can take several forms. It can arise in
any or all of these forms.
A Lack of Awareness of NFPA 921
The use of NFPA 921 as a sword is most effectively and most easily accomplished
when the investigator is not fully aware of the document. Awareness means
much more than mere knowledge of its existence. The investigator unfamiliar
with the specific content of the document and its implications for the field
of fire investigation is destined to be slain by the sword. It is the most
widely publicized guide to fire scene investigation ever published and represents
the collective work of a prestigious group of investigators and scientists.
It cannot be dismissed as just another guide to fire scene investigation.
It cannot be refuted as merely somebody else's opinion. The committee behind
NFPA 921 is a virtual "dream team" of fire investigators, forensic
scientists and representatives from both public and private sectors with
a vast array of experience and credentials. That NFPA 921 is an authoritative
work is beyond dispute. To assume otherwise is to stand defenseless before
the sword as it is swung.
Improper Methodologies Under NFPA 921
NFPA 921 is the most comprehensive work ever produced on the procedures
and methodologies of fire investigation. Virtually every step of the investigative
process is included in NFPA 921, from the pre-scene planning through post-scene
latent investigation. Every step includes specific instructions on how it
should be carried out. Where an investigator has failed to follow the methodologies
of NFPA 921, he is sure to come under fire. Far worse, the investigator
who employs investigative methodologies which are challenged by NFPA 921
as scientifically unsound or unsubstantiated "misconceptions"
will experience NFPA 921 as a sword in a way never to be forgotten. This
is not to say that every step of NFPA 921 must be followed in every fire
investigation, as the document itself acknowledges. However, the investigator
who deviates from the procedures of NFPA 921 must be prepared to defend
his actions and justify his failure to strictly follow NFPA 921. The investigator
who feels a particular step is not necessary or appropriate to the investigation
must be prepared to explain precisely why it was not necessary or appropriate.
More to the point, there must be a "scientific basis" for the
failure to do so. This is a challenge to be faced in almost every fire scene
investigation. It is the most common use of NFPA 921 as a sword in the courtroom.
Improper/Unsubstantiated Conclusions Under NFPA
921
The culmination of every fire scene investigation is the determination
of a fire's origin and cause. The fire investigator who is unable to reach
a conclusion will never get his case to court. In cross-examination, the
investigator will be challenged on his findings and conclusions. An adverse
expert may be called to testify that the conclusions reached by the original
fire scene investigator were improper, even when the adverse expert has
no opinion or conclusion of his own. Indeed, NFPA 921 is filled with disclaimers
and cautionary language about reaching any conclusions in a fire scene investigation
without confirming them through scientific proof from laboratory analysis.
Nfpa 921 is ideally suited for use as a sword in this respect. Observations
at the fire scene which lack confirming scientific proof in the laboratory
are inherently suspect. Apparent "low burn areas" may be the product
of post-flashover conditions. Apparent "trailers" may be the effect
of contents and furnishings in the structure or wear patterns on the floor.
Apparent "pour patterns" may be the result of fall-down. No conclusion
is safe based solely upon the investigator's observations of the evidence
at the fire scene, no matter how extensive his training and experience may
be. There is always an alternative explanation for what may be considered
evidence of an incendiary cause of the fire. The cautionary language of
NFPA 921 and the skepticism shown for an investigator's conclusions based
upon his observations at the fire scene provide ample ammunition for challenging
those observations and conclusions. Even when the investigator has followed
the practices and procedures of NFPA 921, his observations and conclusions
still remain vulnerable to the challenge of the double-edged sword when
they have not been confirmed in the laboratory.
The use of NFPA 921 as a sword cannot be prevented. It is inherent in
the document. There is no easy answer to the problem, short of a fundamental
revision to the text. The investigator who has followed every step of NFPA
921 and confirmed his findings with laboratory analysis may not have to
contend with NFPA 921 as a sword, but those cases are few and far between.
Indeed, such cases will likely never go to court in the first place. If
they do, the challenge will not be directed at the fire's origin and cause,
but the evidence implicating the accused. Where the evidence is something
less than conclusive, as most cases will be, the investigator must be prepared
to face NFPA 921 as a sword wielded against him.
In those cases, the investigator must be prepared on three fronts. First,
he must be familiar with the document and its content. He must recognize
it as an authoritative work in the field of fire investigation, even as
he may take issue with its content. He must be ready to highlight the provisions
which recognize the unique nature of every fire scene investigation and
the role of the fire scene investigator in evaluating the evidence.
Second, the investigator must be ready to show he has followed the recommended
practices and procedures of NFPA 921 or be prepared to show why he has not
done so due to the circumstances of that specific fire incident. Where a
particular step under NFPA 921 has not been followed, it is not enough to
simply say it was considered unnecessary or inappropriate. The investigator
must be prepared to show why it was inappropriate or unnecessary in a scientific
context.
Third, the investigator must be prepared to defend his conclusions and
opinions about the evidence at the fire scene. He must anticipate the challenges
to those conclusions and the alternative explanations suggested by NFPA
921, with scientifically based justification for the conclusions reached.
He must be prepared to refute the alternative theories of the fire under
the same standard of scientifically based justification.
There is little doubt NFPA 921 is the most comprehensive and scientifically
accurate work in the history of fire investigation. It will certainly lead
to higher standards of fire scene investigation, as it has already done.
It is an ironic and unfortunate by-product of this process that NFPA 921
lends itself so readily to use as a sword of cross-examination and challenge.
For the unprepared investigator, NFPA 921 will be a deadly weapon. For the
investigator properly prepared to confront it and justify his findings,
the sword can be fought with the greatest weapon of all - the truth.
 Reprinted with permission from the author.
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