ROD AMMON: Welcome to this edition of the IAAI CFITrainer.Net® podcast. Recently, CFITrainer.Net® launched a new module titled Process of Elimination. In that module, three experts discussed the proper use of the process of elimination and related issues including negative corpus. The process of elimination is a critical part of the scientific method, which is the preferred methodology for investigating a fire scene. When you are called to testify in a legal proceeding about a fire case, you will be asked about the methodology you used to investigate the scene.
How you explain that methodology is critical in many ways. It affects whether you will qualify as an expert witness and be permitted to testify. It heavily influences how the jury understands the facts of the case. It lays the foundation for your conclusions. It supplies the context for judging the validity of those conclusions, and if you cannot explain your methodology clearly and relate to the scientific method, it’s going to cause problems. Fire investigators are still rarely trained on how to successfully present their methodology in a legal proceeding. Today, we’re going to get into that topic with our guest, Steve Avato. He is now the ATF division chief of the National Explosives Task Force. Welcome to the podcast, Steve.
STEVE AVATO: Thank you.
ROD AMMON: You have some other expertise we should know about as well.
STEVE AVATO: Yes, for over 20 years, I was a certified fire investigator with ATF and still am. I’m just not as actively involved in the day-to-day fire investigation, but I still remain involved in fire investigation and training.
ROD AMMON: I know you helped us out with the scientific method module on CFITrainer®. Can you talk a little bit about why it’s so important to explain your methodology clearly in the courtroom?
STEVE AVATO: Sure. There are a number of reasons why explaining your methodology is important. Two of the main ones are because NFPA 921 has established that there is a methodology to fire investigation, and we need to be able to articulate that. The other reason is that the courts have adopted the idea that fire investigators have to be able to present and articulate a methodology in order to even get their story really told in court. That’s been borne out in a number of the Daubert challenges that occur. I think if you do a study on court decisions relating to fire investigation, you’ll see most of them deal with the methodology first before they even get into any of the facts of the investigation.
How did the investigator arrive at their opinions as to the origin and cause of their decisions in that investigation? So it’s extremely important to the courts, but more importantly, the real reason to be able to describe a methodology is that you want to tell your story to someone, whether it’s a court judge or a jury. You want to tell the story of what you think happened at this particular fire, and you have to provide the people that you’re telling the story with kind of a roadmap for how you got there. That is the methodology that we discuss.
ROD AMMON: That’s great and an excellent explanation. So what are the hallmarks of a successful explanation of methodology?
STEVE AVATO: Well, it’s hard to accurately describe what successful description of methodology would be because some people might say it depends on the legal outcome of a case whether a defendant is found innocent or guilty depending on your particular side of that story or whether your company is found liable for a fire or not. So it might be a little bit difficult to describe what a successful explanation of methodology is, but really the hallmark of a successful explanation of your methodology would be that it provides a reader or a listener with a real good understanding of the process that you used to arrive at your conclusions.
Now, the person may not agree with your conclusions, but at least they have the ability to see how you got to the point that you made your decision. They understand what kind of data you included in your analysis, what types of observations you used to form your opinions, and so really the hallmark of a successful explanation of methodology would be that it helps a listener or reader to understand how you got to your conclusions.
ROD AMMON: How do you tie your methodology explanation to the scientific method or to the process of elimination?
STEVE AVATO: Well, the scientific method really gives you kind of the step-by-step process and is the methodology. It’s simple enough to follow that, presuming that you can articulate that in court; it basically gives you that roadmap you need. If somebody says to you how did you decide that the fire started in, say, the toaster, you can explain that using those steps of the scientific method? I entered the scene. I collected data. I made observations. I thought about that data that I collected or analyzed that data. I made some hypotheses about how I thought the fire might have started. I tested those hypotheses either cognitively or even empirically to see if they made sense, and then I went back and sort of did that all over again. I’m not sure I agree 100% with the way the scientific method is sort of drawn in NFPA 921 only because so much of this process occurs almost all at the same time, so a lot of times while you’re collecting data, you’re sort of already analyzing it. You haven’t collected all of the data, but you’re already analyzing that piece of data.
So when I say I don’t agree with the way it is drawn, I mean, literally the way it is drawn is almost a linear process, not the steps that are involved in it because I go through those steps at every scene. I’m constantly analyzing data. I’m constantly forming hypotheses, but more importantly, the scientific method is that methodology that fire investigators can go to court and articulate. They can explain exactly what data they collected, where they found that data, how that data was relevant to this particular fire scene, and how they knew it was relevant. So you need to be able to go into a process where you can explain that to someone who obviously wasn’t at the scene or hopefully wasn’t at the scene, and they can make sense of what it was that you saw and the process that you got there. So NFPA 921 provides a description of the scientific method, and that is essentially a roadmap that every fire investigator can use in every fire investigation they go to and explain that process to how they got to their conclusions.
ROD AMMON: So let’s say you’re giving this explanation and you’re in the courtroom and we’ve all been with people who spend too much time on details or with people who were just like, come on, tell me what I need to know. Like, how much detail is enough? How much is too much?
STEVE AVATO: Well, when I’m asked that question, I usually pose two other questions. One is a simple one and a construction kind of issue. How deep do you drive the pilings to support a building? Well, you drive them deep enough to support the building. It’s not a clear-cut answer, but it’s part of the answer to what you’re asking. The other question I would ask is how much evidence is enough to prove a scientific theory? Well, if you talk to scientists, for various philosophical reasons, they’ll tell you that there may never be enough evidence to prove a scientific theory. So what we’re really trying to do is go into a situation where we can provide enough detail to support our opinion and to answer the question or the issue that we have at hand. So if I want to describe the origin of a fire, I need to give enough detail so that a person walking into the room can understand how I got to my conclusion that the fire’s origin was over here.
If I’m talking about the cause, I need to be able to describe how a particular set of circumstances led to this particular fire and how the heat, fuel, and oxygen all came together at a particular point or location, resulting in a fire. And if I’m talking about attribution, I need to be able to explain why I believe that someone or something was directly responsible for this fire or even indirectly depending on whether it’s a civil case or a criminal case. So it’s very difficult to put a real quantifier on how much detail is enough, but you want to have your thesis, your origin and cause determination well supported by sufficient reasons or warrant to believe that you’re right in this case.
ROD AMMON: So we have listeners that are a lot - are at different levels as investigators. Some have probably never had an opportunity or most have probably never had an opportunity to be in the courtroom. How did you get better at explaining your methodology?
STEVE AVATO: I think one of the ways to get better without actually going into the courtroom is to work with your peers, have peers that you trust and you believe are good at what they do and present them with the facts of your particular case. I’ve found, especially in the public sector, that few people are going to be as hard on you as your coworkers sometimes. I was involved in an investigation a number of years ago that was very controversial, and several of my coworkers were much harder on me in questioning my own presumptions and my own determinations than I think any court judge or jury would have been.
It’s good to have some sort of trusted advisors, if you would, or peers in the field who are good at what they do, present them with the data and the case and say please, challenge me on these things. If I say the fire started in the bedroom, I expect that you will ask me the tough questions. How do I know that? What evidence do I have to support that? What about this other information that may be available in the case? And by getting peers to review that - not just review the case, but to critically question your decisions and your opinions in this case is probably the best way to prepare yourself for what, say, a defense expert or attorney might ask or a prosecutor depending on the circumstances or even an attorney in a deposition. The more you practice - and you need to articulate that, the better you will be.
ROD AMMON: Excellent. I think sometimes - I don’t know, it’s difficult for people to practice, and I just wanted to make sure they feel comfortable doing that and they feel comfortable asking for that kind of help. You mentioned judge and jury, and I wonder is there a difference in how you explain your methodology when you are in a hearing where there’s only a judge versus when you’re testifying in court in front of a jury?
STEVE AVATO: I think in essence there isn’t, but in practice there probably is. So the basic methodology is the same, and you followed it already. You’re just relating it to different people, so just like you would tailor any presentation to a particular audience, you probably would also tailor your description of your methodology to the audience per se. If I’m explaining it to a jury, I may go into just a little bit more detail and maybe use some examples from everyday life on how the scientific method plays into your everyday life, whereas I might not need to explain that to a judge, but certainly if I was doing a deposition, I wouldn’t need to explain that to an attorney on the other side. So you do tailor your explanation of your methodology to a particular audience, but the methodology should be what it is at that particular scene and every scene that you go to. So explaining the scientific method and how you followed it, it is the same scientific method and you did follow it the same way, but explaining it might be tailored slightly different for the audience.
ROD AMMON: Well, you mentioned deposition, so what about when you’re being deposed? Does the nature of that proceeding make a difference in how you explain your methodology?
STEVE AVATO: I believe it does. In most depositions, there are sides that are represented. They’re not in theory the final fact finder. This information is going to be presented to someone else, so you want to explain your position to someone who might read that transcript later on down the line. There’s really - generally in a deposition, you’re not trying to convince the other side of anything. They already know what your opinion is, and you’re explaining it to them. They may not agree with you and they may sort of cross-examine you on those issues, so you have to be ready and prepared for that, but your explanation is essentially going to be the same as it always is. The scientific method is what it is, and you followed it the way you followed it, but you may not go into as much detail to make sure that the attorney on the opposing side understands exactly what you’re talking about. You want them to understand the facts as you saw them or you determined them to be, and how they played into your decision-making, but you’re not necessarily going to try to convince them of anything.
ROD AMMON: Okay, and it’s a good time for me to pitch the fact that we have two modules coming out on CFItrainer in about the next month related to depositions, so I guess I’ll just sneak that on in. What about golden nuggets? Any specific things that you want to say or things that you’d like to share with some of the audience related to methodology?
STEVE AVATO: Well, I think the important thing is, is you’re trying to tell a story to someone, to a fact finder, a judge, or a jury. You want to tell the story of the fire as you saw it, and the data and the information that you used to arrive at your decisions, so the important thing is to - as you’re working that scene, to think about that story, to think about your own decisions and observations. What am I looking at, and what significance does that have? And if I have to explain that to someone six months from now, how best can I approach that? Do I need more photographs? Do I need video? Do I need to take more meticulous notes? How do I need to approach this scene today so that I can tell the best story down the line? And that’s sometimes difficult because at the time you’re working that scene, you may not know the whole story yet, so it’s important to think while you’re at every scene, how you’re going to present the facts of this case or your observations of this case later on down the line.
ROD AMMON: The messages I get from so many of you guys always seem to come back to preparation, and I’m very grateful for your time, Steve. Thanks for your time and for your expertise.
For those of you who are looking for other ways to test yourself and show your work and expertise in fire investigation, check out firearson.com to learn more about the fire investigator technician and evidence collection technician designations available from the IAAI. Also, just a reminder, the NFPA 921 public input cycle closes on January 5, 2015. All public input needs to be submitted via their online system. That concludes this podcast. Stay safe. Hope you enjoy the holidays, and we’ll see you next time for CFITrainer.Net® and the IAAI. I’m Rod Ammon.