Is Negative Corpus Really a Corpse? John W. Reis, of Smith Moore Leatherwood P: E:

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1 Is Negative Corpus Really a Corpse? John W. Reis, of Smith Moore Leatherwood P: E:

2 What is Negative Corpus? Twist on corpus delicti. In crime cases, corpus delicti is the Latin term for the body of a crime. In cases of no body or instrumentality fire investigators developed a shorthand of negative corpus to describe the process of elimination to establish the cause. The term has been used to establish the theory of a fire that remains after eliminating other theories, e.g., incendiary or accidental.

3 Corpus Delicti

4 What is the Negative Corpus Problem? The problem is not in the name. The problem is in the less than rigorous application of the theory of elimination. Some fire investigators have given the term a bad name by simply eliminating causes other than arson and then, ispso facto, concluding it must have been arson since they can t say it was anything else.

5 I Know This is Hard to Believe

6 2011 Change to NFPA * Inappropriate Use of the Process of Elimination. The process of determining the ignition source for a fire, by eliminating all ignition sources found, known, or believed to have been present in the area of origin, and then claiming such methodology is proof of an ignition source for which there is no evidence of its existence, is referred to by some investigators as negative corpus. Negative corpus has typically been used in classifying fires as incendiary, although the process has also been used to characterize fires classified as accidental. This process is not consistent with the Scientific Method, is inappropriate, and should not be used because it generates un-testable hypotheses, and may result in incorrect determinations of the ignition source and first fuel ignited. Any hypothesis formulated for the causal factors (e.g., first fuel, ignition source, and ignition sequence), must be based on facts. Those facts are derived from evidence, observations, calculations, experiments, and the laws of science. Speculative information cannot be included in the analysis.

7 Does this mean process of elimination is inappropriate? Can we no longer use process of elimination to prove a fact that cannot be physically uncovered? How will we ever prove what we have proved for years? Who took the cookie from the cookie jar? Assume only I was in the house for two days. Assume the cookies are gone from the cookie jar. Assume I defend myself on grounds that is her burden of proof and she has no evidence that I ate those cookies. Will NFPA 921 be my saving grace?

8 2014 Another NFPA Change Introduction: The 2014 edition is the first NFPA Code or Standard document to be published in color. The color photographs greatly enhance the effectiveness of the document, and no chapter will exemplify this change more than the Fire Patterns chapter. Now, the contrast and color changes are much more clearly visible. Also, there has been a lot of debate and discussion in the fire investigation community concerning negative corpus since it was addressed in the 2011 edition, and the committee has added information to better clarify the actual intent. Before showing you that change, let s discuss a case that hits close to home.

9 Recent Negative Corpus Case Manuel v. MDOW Insurance Company (8 th Cir. AK June 29, 2015) Fire of 9/14/11 to the West Helena, Arkansas home of Kirk Manuel while he and his family were on vacation in Las Vegas, NV. Rick Eley investigated for Manuel s insurer and was able to eliminate all causes but one: arson. MDOW denied the claim and Manuel sued for breach of contract. At trial, Manuel s lawyer attacked Eley for having used negative corpus in his analysis.

10 Manuel Case Court opinion noted that defense attorney vigorously attacked Eley, referring heavily to 921, 2011 Edition: Counsel for Manuel questioned Eley extensively about his methods, comparing them to those detailed in the National Fire Protection Association 921 Guide for Fire and Explosion Investigations (NFPA 921). Counsel noted that NFPA 921 recommends against using a negative corpus method, which involves eliminating all ignition sources found, known, or believed to have been present in the area of origin to prove the fire was set intentionally. NFPA (2011). Eley insisted that everything he did was scientific, and it followed NFPA 921.

11 Manuel Case But Eley also disagreed with some parts of NFPA 921, including its description of negative corpus: And what I believe negative corpus would be is if I came into this room and all I had was the light fixtures and the switches and things like that, I did not have a chance to talk to the owner or the last person in, and just from just looking around and saying, well, I don t see anything that could have caused it, well, boom, you know, that in my mind might be negative corpus. On the other hand, if you do a physical examination of everything in the area where the fire started and you can t find anything in that area that shows evidence that it caused a fire, and then I m able to talk to the owner, like Mr. Manuel, or whoever the last person was in the house at the time of the fire, and they gave me all the information that I ve talked about already from him, that nothing was on, there was no problems, nothing stored in the house of a flammable nature, I believe that goes beyond the negative corpus That additional human element, Eley posited, led him to the only possible conclusion: The fire had been intentionally set.

12 Manuel case Jury found against Manuel and for MDOW. Manuel filed a motion for new trial on two main grounds Implied bias of the jurors in that many knew him or his witnesses and were even related as cousins. Eley s use of negative corpus. Court rejected the implied juror bias theory. How do you think the court found as to Eley s use of negative corpus?

13 Manuel case Following NFPA 921 is not the only method of fire investigation that we have approved. But if an expert purports to have followed NFPA 921, he must have followed it reliably, or his testimony may be excluded. During direct examination, Eley did not acknowledge NFPA 921 nor did he say he followed it. Counsel for Manuel first mentioned NFPA 921 on cross examination and asked Eley whether he followed NFPA 921. Eley responded that his method was scientific, and it followed NFPA 921. But Eley also testified that he considered NFPA 921 a guide and not accurate in every case.

14 How is it sounding so far?

15 Manuel Case He [Eley] explained that his method of investigating this fire was not negative corpus as NFPA 921 defines it. Instead, he conducted a physical examination of everything in the area where the fire started and then talked to Manuel. Manuel told Eley that nothing was on, there was no problems, nothing stored in the house of a flammable nature. It was only with Manuel s added information, Eley testified, that he was able to conclude that the fire was incendiary.

16 Manuel Case We have some concern about Eley s testimony. On direct examination, he did not say that he followed NFPA 921 when conducting his investigation; but later, on cross examination he said that his investigation did follow that guide. Eley also testified at trial that he disagreed with the NFPA 921 definition of negative corpus and said he did not apply negative corpus methodology as he understood it. He then proceeded to supply his own definition of negative corpus, as well as a description of why he believed the methodology he used in the investigation of the Manuel fire was not negative corpus. But the only difference Eley gave between NFPA 921 s description of negative corpus and his own applied method was the human element of speaking to Manuel about the condition of his home before he had left for Las Vegas. And Manuel told Eley only that no appliances were left on and nothing flammable was left in the house, allowing Eley to eliminate those additional potential sources of the fire s origin. Viewed in this way, the additional information Eley relied on does not go[] beyond the negative corpus as 2015 Eley Smith Moore purported. Leatherwood LLP. ALL RIGHTS RESERVED.

17 Is Eley in the Negative? Court is saying Eley applied negative corpus, the forbidden thing. And they didn t like that he questioned 921. Does not sound too good for Eley, does it?

18 Manuel Case But even with these concerns, the admission of Eley s testimony did not amount to plain error for two reasons. First, Eley determined the origin of the fire based on his observations at the scene and nearly 40 years of experience investigating fires. We have held that an expert may base his final determination of a fire s cause on those two factors. Eley testified that after speaking with Manuel, he examined the house while taking photographs of the damage. He determined that the area of origin was in the southeast corner of the house near the kitchen where the damage was heaviest because, as he explained, it burns hotter there. It burned longer there, the combustible materials would. The wall studs also were missing, a sign of intense heat; there was oxidation on one side of the stove and refrigerator, suggesting the direction of the flames; and the wiring had melted and shorted. Because Manuel assured Eley that nothing had been left on, there were no problems in the house, and no new appliances were in the home, Eley concluded that the fire had been set intentionally. (citations omitted).

19 Manuel Case Second, despite framing his argument on appeal as one against Eley s expert opinion, Manuel s actual argument is that the jury should not have credited Eley s testimony. Manuel did not object to any part of Eley s testimony describing his methodology, his qualifications as an expert witness, or his observations and ultimate conclusions. Instead, Manuel chose to cross examine Eley by pointing out possible inconsistencies between the methods Eley used and what NFPA 921 prescribes. In particular, the jury heard how Eley defined negative corpus and that his definition differed from that in NFPA 921. It is possible the jury could have found that Eley s definition was no different than the NFPA 921 definition, that he improperly applied negative corpus methodology, and that MDOW had failed to offer any evidence that the fire was intentional.

20 Manuel Case That is likely the result Manuel had in mind when adopting his strategy of challenging Eley s testimony through cross examination rather than a motion to exclude his expert testimony. Yet despite the vigorous cross examination, the jury apparently credited Eley s testimony sufficiently to find in favor of MDOW. Thus, even if Eley s conclusion regarding the source of the fire was improper under NFPA 921 s definition of negative corpus, we cannot conclude that allowing his testimony, without any objection from Manuel, prejudiced Manuel and thus constituted plain error.

21 Plain Error Plain error standard was key. Defendant never filed a Daubert motion. Defendant s only challenge was live at trial. This was the very thing Daubert was written to prevent. Why do you think defense counsel did not file a Daubert motion? Why do you think he didn t object to any part of Eley s testimony describing his methodology, his qualifications as an expert witness, or his observations and ultimate conclusions?

22 Questioning NFPA 921 Was Eley right to question 921? Was Eley s conclusion regarding the source of the fire improper under NFPA 921 s definition of negative corpus? Trial apparently took place in 2014 Would this decision have been different if the 2014 change to 921 had been considered?

23 2014 Change to NFPA * Appropriate Use. The process of elimination is an integral part of the scientific method. Alternative hypotheses should be considered and challenged against the facts. Elimination of a testable hypothesis by disproving the hypothesis with reliable evidence is a fundamental part of the scientific method. However, the process of elimination can be used inappropriately. The process of determining the ignition source for a fire, by eliminating all ignition sources found, known, or believed to have been present in the area of origin, and then claiming such methodology is proof of an ignition source for which there is no supporting evidence of its existence, is referred to by some investigators as negative corpus. Negative corpus has typically been used in classifying fires as incendiary, although the process has also been used to characterize fires classified as accidental. This process is not consistent with the scientific method, is inappropriate, and should not be used because it generates untestable hypotheses, and may result in incorrect determinations of the ignition source and first fuel ignited. Any hypotheses formulated for the causal factors (e.g., first fuel, ignition source, and ignition sequence), must be based on the analysis of facts. Those facts are derived from evidence, observations, calculations, experiments, and the laws of science. Speculative information cannot be included in the analysis.

24 2014 Change to NFPA Cause Undetermined. In the circumstance where all hypothesized fire causes have been eliminated and the investigator is left with no hypothesis that is evidenced by the facts of the investigation, the only choice for the investigator is to conclude that the fire cause, or specific causal factors, remains undetermined. It is improper to base hypotheses on the absence of any supportive evidence. That is, it is improper to opine a specific fire cause, ignition source, fuel or cause classification that has no evidence to support it even though all other such hypothesized elements were eliminated.

25 New NFPA 921 They are making clear that the process of elimination is alive and well. You just have to develop the evidence. But what about absent evidence? Can evidence that should be there but isn t serve as evidence. That is, if something is missing that should not be missing, is that, itself, evidence? Think of the missing cookies. NFPA 921 provides us tools to get to yes.

26 NFPA 921 and Use of Evidence You have likely heard of direct evidence and circumstantial evidence. Direct Witness testimony that it is not raining Circumstantial Man enters house with dry umbrella Your case of the missing cookies is purely circumstantial. NFPA 921 does not use those terms. Neither do courts.

27 Courts and Use of Evidence 8 th Circuit Model Civil Jury Instructions, Preliminary Instructions for Use at Commencement of Trial, 1.4 EXPLANATORY: EVIDENCE; LIMITATIONS. Some of you may have heard the terms direct evidence and circumstantial evidence. You should not be concerned with those terms, since the law makes no distinction between the weight to be given to direct and circumstantial evidence. Criminal instruction 1.3 is identical

28 NFPA 921 and Use of Evidence NFPA also makes no distinction between direct evidence and circumstantial evidence. NFPA 921 talks of evidence in the Chapter on Legal Considerations What chapter is that in NFPA 921?

29 Chapter Types of Evidence. There are basically three types of evidence, all of which in some manner relate to fire investigations. They are demonstrative evidence, documentary evidence, and testimonial evidence. They are described in detail in , , and Demonstrative Evidence: tangible items as distinguished from testimony (includes physical evidence and photographs) Documentary evidence includes documents Testimonial evidence includes lay witnesses and experts

30 What Type of Evidence Is This?

31 Evidence Not Otherwise Discussed NFPA 921 does not get deep into the law or rules of evidence or evaluation of the types. It gets deep into the scientific method. The key to understanding the proper use of the process of elimination is not to focus on the type of evidence, but to understand the need to gather all types of data. Even missing data can be data. That is the key to the scientific method, as we seen in these flow charts from NFPA 921.

32 The Scientific Method 4.3

33 NFPA 18.2 Origin analysis

34 NFPA 19.2 Cause analysis

35 Absent Evidence Consider absent ignition sources!

36 Recovering Your Ability to Make the Case

37 Absent Evidence If a thing is missing that should be there, is that evidence, or data? If the cookies are no longer in the cookie jar, but I was the only one in the house, is that data? NFPA Chapter 24, on Incendiary Fires, has tools to get you to yes.

38 NFPA 921, Chapter 24 Several provisions highlighting missing items as important evidence in the process of elimination in incendiary fire case Lack of Expected Fuel Load or Ignition Sources Removal or Replacement of Contents Prior to the Fire Absence of Personal Items Prior to the Fire

39 NFPA 921, Chapter 24 Other factors Trailers Unusual Fuel Load or Configuration Burn Injuries Incendiary Devices Delay Devices Presence of Ignitible Liquids in Area of Origin Assessment of Fire Growth and Fire Damage Remote Locations with View Blocked or Obscured Fires Near Service Equipment and Appliances Entry Blocked or Obstructed Sabotage to the Structure or Fire Protection Systems Damage to Fire-Resistive Assemblies

40 NFPA 921, Chapter Open Windows and Exterior Doors Evidence of Other Crimes, Crime Concealment Indications of Financial Stress Existing or History of Code Violations Owner with Fires at Other Properties Overinsurance Timed Opportunity Fires During Severe Natural Conditions Fires During Civil Unrest Fire Department Unavailable * Motives for Firesetting Behavior. (1) Vandalism (2) Excitement (3) Revenge (4) Crime concealment (5) Profit (6) Extremism

41 Is Negative Corpus Really Dead? Use of the term is, or should be. Not wise to use it. Not wise to blatantly disagree with 921 about it. Use what is in 921 to your advantage Although the term is dead, the process of elimination has not been eliminated.

42 Bottom Line Don t be like Larry and Richard in Weekend at Bernie s If you just pretend negative corpus is not dead, you won t believe what will happen to you.

43

44 Questions? John W. Reis, of Smith Moore Leatherwood P: E:

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