When reviewing and examining the investigation and subsequent court case against the former law enforcement officer, Mr. Secat, we are presented with something that is not as unusual as it may seem. Due to the great number of police shows on television, specifically those with forensic scientists constantly providing insight into how evidence is created, transferred, and then collected, just about everyone you encounter has come to possess a certain amount, be it accurate or inaccurate, of information as to what forensic scientists can do with evidence from or at a crime scene. Due to this deluge of shows, and the information that is being presented on these programs, real world prosecutors have had to include, as I have had to do myself when picking a jury or consulting on the process associated to picking juries, questions specifically addressing the realistic and unrealistic expectations of potential jurors in regards to forensic evidence and its actual availability in a case. The issue is not just the information and sensitivity as it relates to forensic evidence, but rather it is the inaccurate information that is being presented and then sometimes misinterpreted by viewers of these shows. Many times this mindset will create an unfair playing field for the prosecution in a criminal case and the real issues are not being able to detect whether a juror does harbor this mindset.
The truth of the matter is that in actuality there is not always a transfer of something from a person to an item, and there is not always forensic evidence collected in a case that is going to make the case a slam dunk. The concept of transferring some type of evidence to something is known as Locard's principle. Locard’s principle holds that the perpetrator of a crime will bring something into the crime scene and leave with something from it, and that both can be used as forensic evidence. It should be noted that Dr. Edmond Locard (13 December 1877 – 4 May 1966) was a pioneer in forensic science who was eventually known as the Sherlock Holmes of France. His basic principle of forensic science is that every contact leaves a trace. Locard posited that fragmentary, or what is also known as trace evidence, is any type of material left at, or taken from, a crime scene, or the result of contact between two surfaces, such as shoes and the floor covering or soil, or fibers from where someone sat on an upholstered chair (Chisum & Turvey, 2000). In reality, when there is valuable and undisputable forensic evidence collected and then presented, which points directly to the guilt of the defendant, there is usually no trial and a plea bargain is the result.
The fear of evidence being left, located, collected and in a condition which is usable in court is a valid fear of criminals, especially someone with law enforcement knowledge and experience. When criminals think of ways to avoid evidence that they may have left behind in a crime scene, they think about fire. The problem with fire is that it is a living breathing item and if it is not provided for it will not grow and work in the manner a criminal wishes and will not accomplish the goal the criminal is trying to achieve. In fact, it can work against them. What fire can and cannot do regarding evidence is something that is really misunderstood by most individuals. This misunderstanding is enhanced when the someone is the person who has committed the criminal act and is going through the mental process of trying to decide if they left trace or transfer evidence and what would be the best method of neutralizing what they may have left behind that would provide an inexplicable nexus of them to the actual crime scene and thus, to the crime.
During the past 38 years of being in the criminal justice field, I have experienced and read about the use of fire as a mechanism to clean away, or attempt to clean away, the evidence from a crime scene and a body left at a crime scene. I will briefly discuss two cases I have worked on myself and one of those being as a homicide detective and the other as a major crimes felony prosecutor.
While I was a detective, I investigated a case where several subjects entered a home of an acquaintance who was cooking methamphetamine for them and they became involved in heated discussion which lead to one of the subjects to strike the victim so many times and so hard that they killed him right there in his own kitchen. They then decided that they were going to try to cover up the death by starting a fire in the mobile home and burn the body in the fire so the police would not be able to have any evidence to use in the investigation These individuals were not too savvy when it came to chemicals or science and they set fires in three places in the residence and then shut all the doors and windows in the house. Needless to say, without oxygen, the fires they set produced smoke; however, without the air to provide oxygen all the fires extinguished themselves. When I was prosecuting, I prosecuted a case that involved two defendants who set fire to the body of the person they believed they had beaten to death to destroy evidence and in actuality the victim was not dead at the time of the burning. The defendants burned the body and did not realize the victim was still alive. A very good percentage of the victim’s body was not burned. I subsequently presented the case to the grand jury and they were indicted for first degree murder.
What criminals do not think about when attempting to use fire or other items to destroy evidence is that the actual determination of cause of death is not done by the investigator, it is done by the medical examiner or other qualified professional, and even though the actual cause of death may not be readily seen or recognizable at the scene by the detective it will most likely be seen and uncovered by the trained medical examiner during the autopsy or after the autopsy by the forensic chemist when the blood and body fluids are examined by a forensic toxicologist. Studies have shown that more than three-fourths of fire victims die from carbon monoxide poisoning (NFPA 921: 2001 Edition, section 20.5.1), and typically die somewhere other than the room of origin. When fire is used to try to destroy evidence of a crime and make the cause of death look like it was from the fire or an accident they do not thing about the smoke or soot that needs to be in the mouth, throat, and trachea of the deceased. There are also other causes of death by fire that are discernable to an arson investigator and medical examiner. Some of those causes of death are hyperthermia (which happens to be exposure to a hot environment which raises body the temperature to a fatal level, about 109ºF for a few minutes) (Baden, 1999).
I was involved in two recent cases where babies under the age of five years old were left in vehicles in the hot sun and died from hyperthermia. When the autopsies were done and the skull cap is removed it appeared that there had been trauma to the head; however, that is the blood boiling inside the skull with nowhere to go and causing hemorrhaging. Hyperthermia may or may not be accompanied by burns, depending on how hot the ambient temperature was at the time. Other ways that individuals can expire from fire or fire related activities are due to inhalation of hot gases, which can cause strangulation when the epiglottis spasms, and poisoning from toxic gases. There is also the inhalation of soot and smoke (this can act in a number of ways, including blocking airways and causing asphyxiation, or chemical edema, or thermal injuries leading to edema). There is also hypoxia (when breathing in a reduced oxygen atmosphere, which is caused as combustion uses the available oxygen, the body gradually decreases its respiration until unconsciousness results). All of these deaths are accomplished when the person is alive and is killed by the fire or gases or heat created by and as a result of the fire. All of these also have signs that are present and can be detected by the medical examiner or via the laboratory examination by the forensic toxicologist (DeHaan, 1997).
Based upon all of the aforementioned data, there is a point at which a very important question comes forth and must be addressed. Like all the other cases that have been, and will be in investigated in the future where there is a dead body found in a fire, and is also the issue in the present case in Kansas, that the officials investigating the case are presented with and that is the one central question that must be answered. That question is “whether or not the victim was alive or dead when the fire started.”
Baden (1999), describes how this can be determined, "Whether the decedent was alive or dead when the fire started is ascertained by determining if the decedent was breathing when exposed to the fire environment. If a person is alive and breathing after a fire starts, that person must inhale the products of combustion of the fire, in particular, soot and carbon monoxide. Such evaluation requires that autopsies be done on all burned bodies. Soot in the trachea, bronchi and other air passages, and carbon monoxide in the blood demonstrates that the decedent was alive when the fire started. The inhaled carbon monoxide attaches to iron in the red blood cells, causing the blood to become bright cherry-pink and to turn the normally blue-maroon lividity that develops after death as the blood settles to a cherry-pink. Toxicological studies are necessary to confirm the presence and amount of carbon monoxide." These tests are irrefutable due to the fact that they are hard science and there is no one that can come forth to disprove them with viable explanations or possibilities. When the autopsy is complete, the medical examiner will issue a report and provide diagrams and other documentation (Fire/Arson Instructors Guide, 2000).
In addition, the forensic toxicologist will also provide a report and testify to what they found via their examination and also testify to the scientific methods they used to obtain their results which will meet both the Frye and Daubert standards for admission into evidence in a criminal trial in both state and federal courts. These two standards are commonly referred to as the Frye (1923) and Daubert (1989) standards, currently dominate the question of admissibility of scientific evidence. Both standards potentially guide a trial judge in making the determination of whether or not they should admit scientific evidence.
References:
Baden, M., M.D., (1999). "Handling Injuries and Fatalities." interFIRE VR tutorial.
Chisum, W.J. and Turvey, B. (2000). "Evidence dynamics: Locard's exchange principle and crime reconstruction." Journal of Behavioral Profiling. 1(1). 189.
Daubert v. Merrell Dow Pharm., Inc., 727 F. Supp. 570, 572 (S.D. Cal. 1989).
DeHaan, J. D. (1997). Kirk's Fire Investigation. 4th Edition. Brady Prentice Hall, Upper Saddle River, NJ.
Fire/Arson Investigation Course Instructor's Guide. 2nd Edition (2000). USFA. FEMA. Unit 9 (Injury and Fatal Fire Investigation).
Frye v.United States, 54 App. D.C. 46, 293 F. 1013 (1923),
NFPA 921 Guide for Fire and Explosion Investigations 2001 Edition. NFPA.
