The Defense of a Criminal Arson Case

The defense of a charge of criminal arson can be one of the most difficult and challenging tasks for an experienced criminal defense attorney.

Allegations, once brought, are difficult to rebut. The two most important things to have in your corner if you are charged with arson are an experienced criminal defense attorney and good fire investigator. This is particularly important in large arson cases involving significant destruction of property. Insurance companies often team their tremendous resources with those of the local fire department investigators to present a persuasive, though often incorrect, case for conviction.

The charge of arson should only be brought when the investigators have concluded that they can positively determine the cause of a fire and that the cause can be attributed to arson. Unfortunately, many times the failure of an investigation conducted by the police and the insurance companies to positively determine a cause of the fire will cause them to conclude that “we have ruled out all accidental causes, therefore it must be arson”. I have seen this approach in my own practice. What this conclusion does in effect is to shift the burden of proof from the prosecution to show beyond a reasonable doubt that the accused started the fire. It then becomes the burden of the defense to show the defendant did not start the fire. As we all know, it is very difficult to prove a negative.

A good arson defense begins with immediate access to an excellent private fire investigator and to the crime scene. If you are in need of a fire investigator, a good place to begin is the National Association of Fire Investigators. The police investigation team will have already combed through the fire scene with the help of the insurance company experts before charges are brought and the defense investigation begins. It is critical to examine each and every conclusion of the government investigation before formulating the defense to the case. Test and retest the government’s theories and insist on corroborating information for their theories.

Once the defense has settled on the theory of the defense, education of the jury at the very beginning of the case is essential. In the jury selection process, be sure to emphasize the burden of proof being upon the government and how the jury must hold the government to meeting that burden. I have on several occasions listened to a fire department expert tell juries that the defendant must be guilty because after his or her “careful investigation” they have excluded every possible accidental cause, even though they cannot say with specificity where and how the fire was started. Skillful cross examination with the help of your investigator is critical to establishing for the jury the fact that the government’s expert cannot say with any real degree of certainty how and where the fire started and, therefore, cannot say with any real degree of certainty that the accused set the fire.

Proper and complete preparation of any criminal case is essential, but no more so than in a criminal arson charge. The experienced criminal defense attorney must have a thorough knowledge of arson investigation procedures as well as a thorough knowledge of the science associated with fire investigation. Only when these elements are combined will a successful outcome be assured.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.

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