"Evidence on Fire": Fire Science Evidence Reviewed

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 in justice. As science-proficient commentators have noted, “fire scene investigators are subject to very little proficiency training, and the field’s requirements call for no 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 expert evidence exclusionary rules. 

As emphasized in our first piece in this trilogy of pieces on forensic evidence, Discovering Forensic Fraud, judges are capable of ensuring that 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 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 knowledge, rather than scientific, in the overwhelming majority of American jurisdictions.

The ongoing admission of flawed fire science in criminal cases causes us to circle back to the problem Daubert sought to address: the courts’ failure to exclude junk science in American trials. Criminal courts must follow their civil counterparts and rigorously enforce gate-keeping when prosecutors proffer questionable forensic “science” evidence in order to secure a conviction. Moreover, criminal defense attorneys must invoke Daubert and challenge unreliable forensic science during the trial proceedings. As several courts have held, the failure to do so falls below the constitutional requirements that attend to effective advocacy. In a recent opinion piece in the LOS ANGELES TIMES, none other than famed legal novelist John Grisham frames the current state of affairs as follows:

    Over the past five decades, our courtrooms have been     
    flooded with an avalanche of unreliable, even atrocious 
    “science.” Experts with qualifications that were dubious at 
    best and fraudulent at worst have peddled — for a fee, of 
    course — all manner of damning theories based on their 
    allegedly scientific analysis of hair, fibers, bite marks, arson, 
    boot prints, blood spatters and ballistics. Of the 330 people 
    exonerated by DNA tests between 1989 and 2015, 71% 
    were convicted based on forensic testimony, much of which 
    was flawed, unreliable, exaggerated or sometimes outright 
Unfortunately, faulty fire science has been responsible for several high-profile wrongful convictions. Unless and until the courts close their doors to subjective, inaccurate, and unreliable fire origin and causation conclusions, “horror stories about wrongful prosecutions and convictions will undermine the public’s confidence in the ability of the justice system to respond appropriately to fire losses.”