Unit 16: Legal considerations

Question 1

– Tradition.

– “Found” by judges.

Answer 1

Common Law

Question 2

– Made by the legislature.
• Willful and malicious
burning of a dwelling of
another.

Answer 2

Statutory law

Question 3

Willful means:

Answer 3

intentional without excuse

Question 4

Malicious:

Answer 4

can be inferred. ill will toward another

Question 5

Intrastate:

Answer 5

within the state

Question 6

interstate

Answer 6

across state lines

Question 7

• Ambiguous language in statute leads to
judicial interpretation of legislative intent.
• If there is ambiguity in the language of a
statute, court applies the “plain meaning”
of the word or phrase.
• Not necessarily what was meant by the
legislature at the time it was enacted, but
what it plainly means without considering
the intent behind it.

Answer 7

Judicial Interpretation

Question 8

Intent crimes require

Answer 8

specific intent rather than general intent.

Question 9

Hearsay can be admissible if it is from a

Answer 9

co-conspirator

Question 10

Arson is a good example of a___________

Answer 10

General intent crime.

Question 11

• Connects two or more people to a specific
crime.
• Requires an agreement and at least one
overt act in furtherance of the planned
crime.
– Co-conspirators’ statements are exceptions to
the hearsay rule.
– Not all states require an overt act.

Answer 11

Conspiracy

Question 12

• Arson is a “general intent”
crime in some states.
• In most states, intoxication
is not a defense for arson.

Answer 12

Criminal Intent

Question 13

• Arson for profit is a ________

intent crime.

Answer 13

Specific Intent

Question 14

• Civil liability applies to ______________

Answer 14

foreseeable consequences of voluntary acts.

Question 15

•   Burden of proof is 
beyond a reasonable 
doubt.
•   Prosecutor/State has 
the burden of proof.
•   Has to be a 
unanimous verdict.

Answer 15

Criminal Proceedings

Question 16

• Burden of proof is preponderance of the
evidence.
• Plaintiff has the burden of proof.
• Does not have to be a unanimous verdict.

Answer 16

CIVIL PROCEEDINGS

Question 17

PROBLEMS SPECIFIC TO

ARSON CASES

Answer 17

• Must prove that a crime occurred and
prove who did it.
• Large amount of circumstantial evidence.
• Scene contamination.
• No “victim.”

Question 18

Fourth Amendment

Answer 18

“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath
or affirmation, and particularly describing the
place to be searched and the persons or
things to be seized.”

Question 19

Search and Seizure

Answer 19

• Prohibit unreasonable searches and seizures.

• Fourth Amendment — probable cause for
warrants, particularly describe place and
person or thing to be searched (seized).

• Is search/seizure reasonable?
– Case by case.

Question 20

LEGAL DEFINITION OF

PROBABLE CAUSE TO SEARCH

Answer 20

Look at the totality of the facts and
circumstances and make a common sense,
practical decision whether there is a fair
probability that contraband or evidence of
crime will be found in a particular place.

Question 21

Exigent Circumstances

Answer 21

are exceptions to the general requirement of a warrant under the Fourth Amendment searches and seizures. Exigent circumstances occur when the a law enforcement officer has a probable cause and no sufficient time to secure a warrant.

Question 22

What are the two types of Warrants?

Answer 22

Criminal Warrant

Administrative warrant

Question 23

SEARCH WARRANT SHOULD

INCLUDE THE FOLLOWING:

Answer 23

•   Purpose and scope of search. 
•   Probable cause basis for search.
•   Location of party against whom search is 
directed.
•   Specific description of location.
•   Time to be initiated and concluded.
•   Evidence expected to be located/ 
recovered.

Question 24

PARTICULARITY

Answer 24

• Limits scope of search
authority to specific places and things.

• Applies to both the place and the
thing
.

Question 25

Administrative inspection warrant

Answer 25

when you need to establish the cause of a fire however you can not get consent. At the time of the fire you are covered under the exigent circumstances. If you are there and you find something criminal in nature you need to stop and get a criminal search warrant. For a criminal search warrant you need PC. For an administrative warrant you do not.

Question 26

WARRANT EXCEPTION —

EXIGENCY

Answer 26

•   Hot pursuit.
•   Evidence would be lost or destroyed.
•   Public safety.
•   Irreparable harm to 
person or property.

Question 27

WARRANT EXCEPTION —

TERRY STOP

Answer 27

• Reasonable and articulated suspicion to
stop and detain.
• Does not require probable cause or
warrant.

Question 28

For purposes of logging what is inside,
not
looking for evidence of any crime
.

Answer 28

INVENTORY SEARCH

Question 29

RIGHT OF ENTRY ONTO

PREMISES — THREE OPTIONS

Answer 29

• Exigent circumstances.
– Emergency — need to extinguish a fire.

• Consent.
– Owner allows you to remain on the premises.
– May be revoked at any time.
• Search warrants.

– Administrative search warrants.
– Criminal search warrants.

Question 30

• Because origin and cause serves a
compelling public interest, the warrant
requirement does not apply when
aftermath of fire presents exigencies that
will not tolerate delay necessary to obtain
warrant or secure owner’s consent to
enter.

Answer 30

.

Question 31

Administrative Warrants

Answer 31

Include in Affidavit:
• Statute citation defining duties as
investigator, officer or fire marshal.

• Verbiage to include “Determining the origin
and cause of a fire is necessary to ensure
the safety of the property owners and the
community.

• Need to ensure the building is safe for the
property owner to enter.

Question 32

5th amendment

Answer 32

“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Question 33

5th amendment

Answer 33

• “No person … shall be compelled in any
criminal case to be a witness against
himself …”
• Miranda warnings — intended to overcome
custodial interrogation coercion.

Question 34

What makes it a custodial interrogation?

Answer 34

Totality test, looks at location, length and who
is present and participates, etc. When a
reasonable person in the defendant’s position
would not have felt free to leave.

Question 35

Double jeopardy does not apply to:

Answer 35

– Civil sanctions.
– Administrative sanctions.
– Civil forfeitures.

Question 36

Tangible items, authenticated by witness

identification or chain of custody

Answer 36

Demonstrative Evidence

Question 37

– Written form (Business records, sales

receipts, inventory lists,

Answer 37

Documentary Evidence

Question 38

Competent live witness under oath.

Answer 38

Testimonial Evidence

Question 39

Loss, destruction or material
alteration of an object or document that is
evidence or potential evidence in a legal
proceeding by one who has the responsibility
for its preservation.

Answer 39

Spoliation

Question 40

• To establish “spoliation__________________

Answer 40

the party alleging
must show that the party being grieved
had a duty to preserve evidence and that it
nonetheless destroyed the evidence.

Question 41

• Destruction for purpose of depriving
defendant of exculpatory evidence.
• Exculpatory value must have been
apparent to government official prior to
destruction.

Answer 41

Bad faith

Question 42

The right of a person to assume a legal claim of
another; an insurer’s substitution in place of the
insured in regard to a claim against a third party for
indemnification of a loss paid by the insurer.

Answer 42

Subrogation

Question 43

is a motion filed by a party to a lawsuit which asks the court for an order or ruling limiting or preventing certain evidence from being presented by the other side at the trial of the case

Answer 43

MOTIONS IN LIMINE

Question 44

Testify to observations, not interpretations

or opinions.

Answer 44

Lay Testimony

Question 45

Level of Certainty

Answer 45

The investigator should know the level of certainty
that is required for providing expert opinions.
Probable — More likely than not. Greater than 50
percent. Possible — used when two or more
hypotheses are equally likely.

Question 46

• Daubert — criteria to measure reliability of
the methodology.
– Relevant.
– Reliable.
– Theory or technique tested with appropriate
standards and controls?
– Subject to peer review?
– What is the known or potential rate of error?
– What is the level of general acceptance?
– Judge is gatekeeper.

Answer 46

..

Question 47

• Residential fire.
• Court ruled that Daubert applies to Fire
Investigators.
• Testimony based on scientific principles —
scientifically valid and properly applied to
facts.
• Expert took no samples, performed no
tests, couldn’t explain methodology for
elimination of source.

Answer 47

MICHIGAN MILLERS MUTUAL

INSURANCE V. BENFIELD (1998)

Question 48

What is the “Process of Elimination?”
•   Process of testing alternative hypotheses 
and disproving the hypotheses with 
reliable evidence.
•   Formulated hypotheses are based upon 
evidence, observations, calculations, 
experiments and the laws of science.
•   Speculative information cannot be 
included.

Answer 48

Negative Corpus

Question 49

Opinions based upon negative corpus are not consistent with the scientific method, are inappropriate, and should not be used because such opinions generate untestable hypotheses.

Answer 49

— NFPA 921, Chapter 19, Section 19.6.5, 2014 ed.

Question 50

If you prepare a report which does not clearly
state how you determined the cause of the fire,
or if you state that the fire is incendiary because
you “ruled out all accidental causes,” your
opinion may be challenged using the
Daubert/Frye standard.

Answer 50

If the Court determines that your opinion is
based upon negative corpus, your opinion may
be excluded.

Question 51

Fire investigator claimed that he ruled out all
accidental causes. Defendant showed the investigation had actually not considered “all” possible accidental causes. Court excluded testimony.

Answer 51

State v. Gibson, Pima County, AZ (July 25, 2013).

Question 52

HOW TO AVOID A NEGATIVE

CORPUS CHALLENGE

Answer 52

1. Conduct a thorough investigation.
2. Have a clearly defined area of origin.
3. Follow the Scientific Method.
4. Rule out accidental and natural, continue
   to use Scientific Method to test alternate
   hypotheses.
5. Use NFPA 921 to justify work.
   Document Everything!!!!!

Question 53

USE NFPA 921 TO DEFEND YOUR

WORK

Answer 53

• Chapter 1, Section 1.3 — Application.
• Chapter 19, Section 19.4.4.3 — No physical
evidence found at the origin.
• Chapter 19, Section 19.5.2 — Carefully consider
potential ignition sources that do not correspond
to physical evidence.
• Chapter 19, Section 19.6 — Testing the cause
hypothesis.
• Chapter 19, Section 19.6.1 — Scientific Method.
• Chapter 19, Section 19.6.4 — Means of
hypothesis testing.

Question 54

EXAMPLES OF PROPER

DOCUMENTATION

Answer 54

Schlesinger v. United States,
898 F.Supp.2d 480 (EDNY 2012).

– Investigator cited his years of experience,
physical inspection of the fire scene,
consultation with an electrical engineer, and
evidence of a fraudulent insurance claim.
•
Ledbetter v. Blair Corp.,
MD Alabama
(June 27, 2012).
– Investigator wrote a detailed report, which
included specific citations to NFPA 921, Chapter
18, Sections 18.1.3, 18.2.3 and 18.1.5.

Question 55

ARSON REPORTING IMMUNITY

STATUTES

Answer 55

Provides for law enforcement and
insurance companies to share information
without fear of criminal or civil liability.

Information from insurance company can
be obtained via an immunity letter sent to
the insured’s insurance carrier.

Question 56

• What information can you obtain?

Answer 56

–   Policy Information, application, property 
survey, payment history.
–   Notice of loss, proof of loss.
–   History of prior claims.
–   Insurance Investigator reports.
–   Witness statements.
–   Examination under oath (EUO).

Question 57

• EOU questioning is being done by a civil
attorney retained by the insurance
company.
• Part of the contractual relationship
between the insurance company and the
insured.
• Defendant is appearing pursuant to court
subpoena.
• Possible agent of government issues.

Answer 57

Examination under Oath