Book Reviews

The Investigation and Prosecution of Arson
by John F. Decker and Bruce L. Ottley
747 Pages. $110.
Lexis Law Publishing
Box 8187, Charlottesville, VA 22907-6174
(800) 562-1197

Reviewed by Michael Clay Smith *

With more than 80,000 arson offenses reported to the FBI annually, virtually every prosecutor’s office can expect to deal with arson cases. This exhaustive volume, prepared by two experienced law professors, offers enormous help.

While “a fire creates its own evidence,” the authors note, the heat, flames and firefighting process destroy much that would be of evidentiary value. For these reasons, expert witnesses are critical to the prosecution and defense alike. Questions involving chemistry, physics, explosives, electricity and engineering, as well as the secrets cloaked in burn patterns, may have to be interpreted for the trier of fact. Thus, recruiting, qualifying and questioning an expert must be done with knowledge and craft. Here the volume shines. The different types of fire experts are described, and the industry’s guidelines and standards are detailed. Hundreds of cases from across the country on acceptance (or denial) of proffered fire experts are cited, so much of the research needed for a trial or appellate brief is furnished.

What of the motive of the arsonist? The authors explore the usual motives—insurance fraud, vandalism, revenge, concealment of another crime—and offer “financial red flags” for investigators. Too, they expound on fire scene preservation—something that should be planned, with protocols established well in advance of a fire.

Specialized sections include vehicular arson, Fourth Amendment issues in fire-related searches and seizures (also with hundreds of authoritative citations), police interrogations, complex fire investigations by grand juries, accomplices and “sharing statutes,” which grant immunity to insurance companies and governmental agencies when they share possible arson evidence.

The book also contains the arson statutes of every state and federal jurisdiction and an edited transcript of an arson trial, complete with pertinent testimony from the firefighters, police, an expert from the federal Bureau of Alcohol, Tobacco and Firearms (ATF), and an insurance investigator.

The book is thorough. While it is a book by lawyers for lawyers, it would be of great value to investigators and expert witnesses as well. The only criticism noted is a tendency toward redundancy; the volumes’ 747 pages could be edited and cross-indexed a bit more tightly.

* Reviewer Michael Clay Smith, a former prosecutor, is professor of criminal justice at the University of Southern Mississippi.

Legal Interviewing: A Video Workshop
by Alan M. Lerner, Augie Hermann and Bruce Bellingham
Two videotapes (total 130 minutes) plus text (109 pages). $215.
National Institute for Trial Advocacy (NITA)
Notre Dame Law School, 1602 North Ironwood Drive
South Bend, IN 46635-1842
(800) 225-6482

Reviewed by Christopher A. Alexy *

While acknowledging that “{m}any of the techniques that support effective client interviewing are also essential to interviewing third parties... conducting witness examinations and making oral arguments,” Legal Interviewing: A Video Workshop unmistakably focuses on the private practitioner’s meeting and evaluating of the prospective client. Still, the series presents some techniques that prosecutors will find helpful in interviewing both victims and witnesses. At the same time, prosecutors will be reminded of many common interviewing mistakes, often the result of pressing caseload and a desire to cut to the facts we deem relevant. If nothing else, the series cautions us to slow down and listen, while providing easy-to-use guidance for building trust in an inherently “asymmetrical” or imbalanced relationship.

As the authors point out, “the lawyer holds the balance of power” in many interviewing situations. This owes not only to the attorney’s position and perceived expertise, but also to the fact that he or she often is in the position to control the interview. In other words, one can create “an imbalance of power when the lawyer defines the situation, introduces topics of conversation and, through further questions, steers the interview.” And while this may be an effective method of cross-examination, it may be counterproductive when trying to assess and prepare a case.

Through a number of simulated interviews, the authors demonstrate how exerting too much control can undermine the lawyer’s overall effectiveness. For example, the more one asks questions that seek specific facts, rather than open-ended answers, the greater the likelihood that significant, and perhaps unanticipated information may be overlooked. Too, these types of questions may cause witnesses or complainants to feel less at ease than if permitted to tell their own story at their own pace and comfort level. The results can range from a decrease in rapport to missed information. How many of us have had witnesses do well on direct examination, only to come out with a gem on cross that should have and could have been anticipated?

Throughout both the text and the videos, the authors provide a number of other interviewing suggestions that may seem obvious, but often are neglected or ignored in the haste generated by a jumbled caseload. For example, did we bother to give the interviewee any background about ourselves? Did we appear attentive or take phone calls and notes throughout the procedure? Did we take time to explain what stage the case is in, and what the victim/witness can expect in the future? As the authors indicate, all of these areas can provide an opportunity to build trust and rapport and should be developed accordingly.

Still, from a prosecutor’s perspective, the program’s principal strength, its emphasis on evaluating client goals and options, also is its primary shortcoming. Throughout the tapes and the text, the simulated interviews deal with cases involving potential civil litigation such as labor disputes, sexual harassment claims and person injury cases. Thus, while many of the interviewing techniques and tactics may be similar, the simulations do not reflect a prosecutor’s typical experience, and can become tedious and other-worldly unless one is contemplating a career change.

Also off-putting is the tenor of the videotaped lectures, which are geared more toward law students and trial practitioners than to anyone who has spent some time around irate victims or recalcitrant witnesses. The text, on the other hand, provides a concise and informative overview of the subject matter, from which even the seasoned prosecutor will be able to mine a few useful nuggets. In the end, however, these jewels probably will not justify the purchase of the entire package.

* Reviewer Christopher A. Alexy is a senior assistant state’s attorney in of the Office of the State’s Attorney in New Haven, Connecticut.

Would you like to review a book for The Prosecutor magazine? We welcome reviews by prosecutors of new books that are of interest to prosecutors. If you consider yourself a good writer and would like to review a book, write or fax the editor with your areas of interest and expertise. Send to The Prosecutor, NDAA, Suite 510, 99 Canal Center Plaza, Alexandria, VA 22314-1588. Fax: 703-836-3195. As a bonus for your efforts, you get to keep the book.