By John Horswell, Chief Executive Officer, Approved Group International Malaysia
In this article John Horswell discusses why fundamental qualifications are important in undertaking forensic investigations and the interpretation of the evidence and circumstances by applying the Scientific Method, which forms part of international standards. The article challenges the reporting officer in forming their professional opnions as opposed to personal opinions and concludes with the legal implications and the legal certainty of an opinion.
Why Fundamental Qualifications are Important
The person writing the report must firstly have the relevant Scientific or Engineering qualifications to write the report. This being the case, an electrical engineer would need to have a background in electrical engineering. A fire investigator should have the relevant international qualification as Certified Fire Investigators from the International Associations, Certified Fire and Explosion Investigator (CFEI) from the National Association of Fire Investigators (NAFI), a professional organisation, with international membership, including members, working within and from Malaysia. The other qualification is Certified Fire Investigator (CFI), from the International Association of Arson Investigators, again from the United States. These certifications are a necessity if you are reporting on Fire Investigations and conforming to International Standards. Approved Group International has staff with the following qualifications: Certified Fire and Explosion Investigator (NAFI/IAFI), Fire Investigation Technician (FIT) from IAAI, and Certified Fire Investigator (CFI) from IAAI. The bare minimum would be that the report reviewer possesses CFEI from NAFI/IAFI and CFI from IAAI. Approved Group International has the relevant staff with the appropriate qualifications to cover the above, ensuring the reviews are both administratively and technically accurate.
Reports and Conformance to International Standards
One of our guiding standards is ASTM International’s E620–18 Standard Practice for Reporting Opinions of Scientific or Technical Experts. Before we provide a report, we must complete the investigation. This follows the guidance of another international standard, the National Fire Protection Association’s NFPA 921 -2021. NFPA in their heading, stated that this is a Guide and not a Standard, however, the Guide was approved as an American National Standard on April 25, 2020 and is considered by most in the legal fraternity to be such.
NFPA 921-2021 sets the bar for scientific-based investigation and analysis of fire and explosion incidents. Referenced in the field, in training, and in court, it is the foremost guide for rendering accurate opinions as to incident origin, cause, responsibility, and prevention. It is intended for use by both public sector employees who are responsible for fire investigation and private sector professionals who conduct investigations on behalf of insurance companies or for litigation purposes.
The Scientific Method
The Scientific Method, as defined by NFPA-921, is the systematic pursuit of knowledge involving the recognition and definition of a problem; the collection of data through observation and experimentation; analysis of the data; the formulation, evaluation, and testing of hypotheses; and where possible, the selection of a final hypothesis (NFPA 2020).
The following is a flowchart outlining the scientific method as it applies to fire scene investigation and reconstruction (adapted from 4.3 NFPA921-2021 at page 20; source: Icove, David J., and Haynes, Gerald A., Kirk’s Fire Investigation, eighth edition, Pearson, New York, New York, 2018).
Francis Bacon (1561-1621), although a professional Barrister, is best known for establishing and popularising the method of inductive logic or inductive reasoning for conducting critical scientific enquiries. The method of inductive logic extracts knowledge through observation, experimentation, and testing of hypothesis. The basic concept of the scientific method is simply to observe, document, hypothesis, test reassess, and conclude (Icove & Haynes 2018).
Formation of Opinions
Everyone has an opinion, and many confuse personal opinion(s) with professional fact. An opinion seems so basic, so understood, however it is not. It is a view, a judgement or an appraisal formed in the mind about a particular issue or subject. Unfortunately, much of the knowledge imparted, as a so-called professional opinion, has only come to them through the eyes of others as they have never experienced it. Personal opinions come from beliefs, personal biases, past experiences, moral compass, or politics. Personal opinions are not supported by professional fact, they are what you think personally. The difference between opinion and professional fact are significant but may be confusing.
Professional fact is very simple. A person has personally experienced these situations first-hand. The information was not gleaned through the experiences of others, they did not read about it or hear it from someone else, but rather learned it through their own eyes and contact. By doing, and learning along the way, you gain first-hand knowledge about something and can share what you learnt because you have experienced it. There is a definitive difference between the two definitions. While personal opinions are more subjective, professional opinions must be objective.
Legal Implications and Certainty of an Opinion
Professional specialists or “Experts” need to be prepared to express and deliver their opinions in a legally sufficient way. Expert opinions need to be based on reliable facts and methodology or the report may be excluded from evidence in any subsequent Court proceedings. Cross-examination will challenge the expert’s opinions, methodology, and the facts and data upon which the opinion is based.
The facts or scientific principles on which experts base their opinions must be sufficient to support reasonably accurate conclusions. Expert witnesses will not be barred from expressing opinions merely because they are not willing to state their conclusions with absolute certainty. However, expert opinions, if not stated in terms of certainty, must at least be stated in terms of the probable, and not merely, the possible. The test of whether an expert witness testimony expresses a reasonable probability is not based upon the use of “magic words” but is determined by looking at the entire substance of the expert’s testimony.
Although no magic words are required, certain phrases are commonly used by expert witnesses to express the idea that their opinions are based on at least a 51% probability. These phrases include:
“based on a reasonable degree of certainty,”
“based on a reasonable degree of scientific probability,”
“based on a reasonable degree of scientific certainty,”
“more likely than not.”
When an expert does not express the concept that they are at least 51% sure of their opinion, the opinion might be excluded by the judge. Thus, it is important to state an opinion in a way that clearly communicates that it is based on a reasonable degree of probability and not just a mere possibility or speculation.
In most civil cases, the legal requirement for stating an expert opinion is related directly to the burden of proof that exists. That burden of proof is referred to as the “balance of probabilities” the “preponderance of the evidence,” “more likely than not,” or “more than 50% likely.” This is a much lesser burden of proof than the “beyond reasonable doubt” standard with criminal cases.
The expert’s opinion must satisfy the “preponderance of the evidence” burden of proof. This means that the expert must opine that it is more probable than not, in other words, more than a 50% probability that their opinion is correct. Thus, an expert witness may give testimony in terms of an opinion that something could, or would, produce a certain result. The theory for admitting opinion testimony of this nature into evidence is that an expert witness’s view regarding probabilities is often helpful in the determination of questions involving matters of science, technical or skilled knowledge.