Do Computer Forensic Experts
Need a PI License in Georgia?
Gregory L Fordham
September 2009
last updated January 2012
In a letter dated April 2, 2007, that has been widely circulated by computer forensic practitioners as well as some e-discovery shops, the Secretary of State advises that the Georgia Board of Private Detective and Security Agencies (the Board) requires computer forensic firms and their technicians to be licensed when providing services to the public, since they meet the definition in OCGA §43-38-3(3) as a private detective business.
In general, forensics is the application of technical and scientific knowledge to legal problems. Computer forensics, therefore, is the application of computer knowledge and skills to legal problems involving digital evidence. Most commonly these problems involve collection and preservation but can also extend to answering many questions about authenticity, usage and trend. Thus, if words have meaning, someone involved in recovering deleted data related to a legal proceeding is practicing computer forensics while providing that same service outside a legal setting for the general public is not. It is just data recovery.
The question, therefore, is the Board requiring licensing of forensic experts in a litigation setting or only when they provide equivalent services to the general public? If it is the former, such as when a testifying expert is retained by an attorney or its client in expectation of litigation, then it looks like a case of licensing Board gone wild along with those trying to leverage a business advantage by claiming that such a requirement exists.
Georgia Law of Forensic Experts
When it comes to evidence being offered by individuals, it typically is either as a fact witness or an expert witness. Fact witnesses have direct knowledge relevant to the issues in a case. An expert testifies because of their expertise that may be meaningful to a party when proving its case.
A key distinction between fact witnesses and expert witnesses is that an expert witness may provide an opinion. Fact witnesses must limit their testimony to facts, except for opinions that are either rationally based on an actual perception of the witness or might otherwise be helpful to an understanding of their testimony.
By its very nature, computer forensics is appropriately the subject for expert witnesses. In Georgia, the requirements for the admissability of expert opinion are described in OCGA 24-9-67 for criminal cases and OCGA 24-9-67.1 for civil cases.
In criminal cases under OCGA 24-9-67, "The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses."
In civil cases under OCGA 24-9-67.1 the requirements are more complicated. First, the expert must be qualified by "knowledge, skill, experience, training, or education".
Second, the expert's testimony must be based on a reliable foundation comprised of,
- "sufficient facts or data which are or will be admitted into evidence at the hearing or trial";
- "The product of reliable principles and methods"; and
- The application of the principles and methods reliably to the facts of the case.
Third, the expert's scientific, technical, or other specialized knowledge will, "Assist the trier of fact . . . to understand the evidence or to determine a fact in issue."
There are two interesting facets of Georgia's statutory requiremetns for the admissibiilty of expert testimony. First, in criminal cases the requirements are not nearly as stringent as in civil cases. Second, neither set of requirements identify a licensing requirement for admissibility of the expert's testimony.
While there are no other requirements regarding experts in the statutes governing criminal cases in Georgia, there are two other facets to the expert qualification in civil cases. First, paragraph (c) imposes a licensing requirement on experts when testifying about professional negligence and actual experience requirements when testifying about medical malpractice. Second, paragraph (f) authorizes Georgia courts to draw from decisions by the US Supreme Court and other Federal Courts interpreting and applying the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)and its progeny.
So, while the basic criteria for expert admissibility in civil cases do not require a license, those criteria have been supplemented in subsequent paragraphs with specific licensing. Those licensing requirements are limited, however, to malpractice cases. Thus, licenses are not required in other matters.
With respect to the Daubert criteria or other Federal Court decisions, mentioned and authorized for consideration in paragraph (f) of Georgia's evidence statutes on expert witnesses, the requirements for expert qualification under rule 702 of the Federal Rules of Evidence are similar to Georgia's. Under Rule 702, "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case."
As a result, the federal cases do not contemplate any limitation on expert witnesses as a result of state licensing boards even though licensing could affect a witness’ credibility.
In Dickerson v Cushman, Inc., 909 F.Supp. 1467, M.D. Ala. S.Div (1995), the court explained that, "Federal courts have allowed persons to testify as expert witnesses even though they did not possess certificates of training or education, memberships in professional organizations, and may not have been the most outstanding practitioners in their fields. See United States v. Barker, 553 F.2d 1013, 1024 (6th Cir.1977). In general, the fact that an expert does not have a degree or license in his or her professed specialty goes to the weight of his or her testimony rather than its admissibility. United States v. Bilson, 648 F.2d 1238, 1239 (9th Cir.1981). "
The Georgia courts have followed similar reasoning (see Williamson v Harvey Smith Inc., 246 Ga. App. 745, 542S.E.2d 151 (2000) citing Dayoub v Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600, 99 FCDR 3085 (1999), "The possession of a license in Georgia does not go to qualification as an expert witness but may go to the weight and credibility that a jury gives to such expert's opinion.").
In fact, the requirements in Georgia are minimal and a license is not required. (see Dayoub v Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 521 S.E.2d 600, 99 FCDR 3085 (1999). "The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession.")
While there is no precedent on computer forensic licensing, other efforts to exclude unlicensed experts in Georgia have failed. In Dayoub for example, the Appeals court concluded that, “Such license requirement is arbitrary and capricious and imposed a standard of qualification greater than that required by law,” citing OCGA 24-9-67. In Nelson v State, 279 Ga. App. 859, 632 S.E.2d 749 (2006), the Appeals court characterized a criminal defendant’s arguments against the testimony of an unlicensed psychologist as “meritless” explaining that, “This Court has repeatedly held that it is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert.”
Furthermore, the court in Dayoub also said that, "The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion," citing OCGA § 24-9-67 and Bales v. Shelton, 197 Ga. App. 522, 525(3), 399 S.E.2d 78 (1990). So clearly, at least in Georgia, it is the courts and not the licensing Boards that are the gatekeepers for determining who is or is not an expert witness. Moreover, the consequence of this fact in any e-discovery or traditional computer forensic situation is far reaching considering recent Federal decisions in cases like Victor Stanley Inc. v Creative Pipe Inc., 250 F.R.D. 251, 70 Fed.R.Serv.3d 1052, (2008), "Indeed, it is risky for a trial judge to attempt to resolve issues involving technical areas without the aid of expert assistance."
The idea advanced by licensing advocates that testifying experts can simply offer opinions based on the work performed by licensed professionals is also doomed, since both the federal and Georgia cases as well as their respective rules of evidence require that experts base their work on a reliable foundation, which often means making their own tests, taking their own measurements, or at least reviewing and confirming the work done by others. (see, In re Polypropylene Carpet Antitrust Litigation, 2000, 93 F.Supp.2d 1348, motion to amend denied 2000 WL 863456, "Expert may not simply repeat or adopt findings of another expert without attempting to assess validity of opinions relied upon." See also, Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 542 S.E.2d 151, "Home inspector testifying as an expert witness could base his testimony on report that had been prepared by someone else in his office; inspector testified that he went back to property and verified report's contents.")
Any notion that the Board’s claim reflects legislative intent as manifested in the far ranging definition of a private detective business is misguided as evidenced by the wording in OCGA 24-9-67.1(f) mentioned above holding just the opposite. Furthermore, OCGA 24-9-67.1(c) does require licensing of experts in malpractice cases. Thus, the absence of a licensing requirement in other matters further evidences the absence of legislative intent with respect to PI licensing. The absence of an exemption for expert witnesses in the private security statute should not be interpreted as expanding its coverage to expert testimony, since the legislature omitted exemptions in the statutes of other professions as well.
Recent Legislative Initiatives
The lack of legislative intent for a PI licensing requirements for experts is also apparent from the recent history of this issue, which begins in March 2006 when HB 1259 cleared the General Assembly and went to Governor Perdue for signature.
HB 1259 made only a few changes to the existing Private Investigator (PI) statute. The most significant was that it upgraded the penalty for an unlicensed private detective business from a misdemeanor to a felony.
The change was widely touted by PI types as a stealth move directed at computer forensic practitioners. Because the definition of private detective business is so broad, the change brought outcry from numerous other professions who feared ensnarement as well.
On May 5, 2006, Gov. Perdue vetoed the bill explaining that the felony provisions could result in unintended consequences as a result of the overly broad definition of private detective business and the lack of exemption for expert witnesses.
In 2007, PI lobbyists resumed their efforts with a new bill, HB 504. Interestingly, one of the PI lobbyist in the HB 504 effort was related to the then Board Chair, who also operates a private detective and security firm.
The new bill updated the definition of a private detective business to expressly include "any type of digital or electronic information". It also expressly exempted the application of the private detective statute to other licensed professionals performing within the scope of their profession.
Clearly, the new bill was trying to overcome its prior shortcomings. Furthermore, this second attempt evidences that the definition of a private detective business must not have included computer forensics or electronic information; otherwise, why need to modify it?
At the same time, the new bill would have made a PI license a kind of super license, since all analytical professionals would be covered by the PI license requirement unless covered by an exemption or some other professional license.
Despite that licensed accountants, engineers and medical personnel, for example, were exempted from coverage, the new bill still lacked an exemption for expert witnesses as mentioned in Governor Perdue's veto explanation and the expressed intent of the legislature reflected in OCGA 24-9-67.1(f).
Unsurprisingly, HB 504 disappeared into committee and was never heard of again. So, it never passed the legislature and never made it to the governor's desk for signature. Indeed, all that remains is the Board’s April 2007 opinion that was issued in the face of legislative failure.
Also of interest is that in the fall of 2009 a group researching the applicability of the PI statutes to computer forensic investigations in all 50 states for a paper published in the Journal of Digital Forensics, Security and Law requeried the State of Georgia regarding this issue but received no response (see Table 9 in the article). Interestingly, Georgia was one of only three states that did not respond to the 2009 inquiries. Since the 2007 letter was the result of a similar inquiry, does the Board's silence in 2009 reflect a realization of its untenable position?
A Definition Dilemma
Remarkably, the Board's April 2007 opinion letter maintains the exemption for licensed accountants but fails to mention other licensed professionals like engineers or medical personnel whose services often match those in the definition of a private detective business. So, should those relying on the Board's 2007 opinion conclude that engineers and medical personnel must also be licensed PIs when the conduct of their profession intersects the definition of a private detective business?
For example, engineers, licensed or not, are often called upon to determine the cause for the failure of bridges or other structures. In such a case is an engineer's conclusion information under OCGA 43-38-3 that defines a private detective business as obtaining or furnishing information related to, "The cause or responsibility for fires, libels, losses, accidents, damage or injury to persons or property"?
Similarly, would medical professionals encounter the same situation when considering the cause of a wrongful death or personal injury caused by a misdiagnosis or improper medical procedure?
Would an accountant, whether licensed or not, reviewing bank records or credit card statements of a spouse in a family law matter satisfy paragraph (B) of the definition of a private detective business involving information related to transactions and acts of any person?
Even paragraph (E) of the definition, that involves the securing of evidence to be used before any court, board, officer or investigating committee when done in the course of performing the private detective business, has been used by PI types to argue that only private investigators may perform the preservation of ESI in e-discovery matters. If that includes computer imaging then why not also require licensing of copy services when making copies of paper document originals? After all, computer imaging is simply making a copy of the original.
Of course the PI statute incorporates securing of evidence only, "when done in the course of performing the private detective business." So, if simply copying paper documents is not performing the private detective business, how could simply copying electronic media be performing the private detective business?
Since absurdity is best illustrated at the extremes, take the definition of private detective business even further. Should a gardner have a PI license before determining the cause of death for a homeowner's favorite specimen tree and providing that "information" to the homeowner? Or does a handyman need a PI license before determining the location and recovering jewelry from a sink's "P" trap?
So, despite that the above examples arguably are information within the definition of a private detective business, is anyone that provides information or determines the cause for a loss required to have a PI license? The logical answer has to be no. The big question, then, is what is the distinguishing characteristic of a private detective business?
Clearly, neither the Georgia statutes nor the case law requires forensic experts to have a license of any kind, much less a PI license, except in the case of malpractice. To require a PI license would, therefore, render the statutes on the admissibility of expert opinion almost meaningless. So, for the private detective statute to have meaning without nullifying the other statutes, it logically must be in some other context. After all, the definition of a private detective business means obtaining or furnishing information (see OCGA 43-38-3). By contrast, forensic experts provide opinion (see OCGA 24-9-67.1(b)).
This difference between information and opinion is likely the key for distinguishing forensic experts from private investigators. Information, even if authenticated and organized, is a raw form of data. On the other hand, a forensic expert utilizes the raw data for measurement, experiment and analysis in order to develop an opinion that may be used by the trier of fact in rendering their decision. When viewed in this context, a PI license is not applicable to the work performed by computer forensic experts.
PI advocates often argue that they are the only ones licensed to perform investigations. The problem with this logic is that under Georgia law their profession is not defined as performing investigations. Rather, their profession is defined under OCGA 43-38-3 as providing information and, as mentioned above, information is a raw form of data.
Of course the difficulty in properly applying the Board's 2007 opinion letter in particular or the definition of a private detective business in general could signal other problems for the statute. In other words, is the statute unconstitutionally vague?
In Davis v State, 272 Ga. 818, 537 S.E.2d 327 (2000), the Supreme Court of Georgia said that, “A statute is not unconstitutionally vague if its language provides persons of ordinary intelligence with notice as to what it prohibits so that they may conduct themselves accordingly.” Clearly, that clarity does not exist with respect to the definition of a private detective business. The term information is the lynch pin of the definition; yet, it is not defined and in a broad sense anyone with knowledge greater than another possesses information. So, could anyone offering their increased knowledge to another be operating a private detective business?
Interestingly, the recently failed legislative initiatives to change the private detective statute exemplify its problems. HB 1259 generated a tremendous outcry when numerous other professions feared ensnarement. When it was vetoed, the inadequacies in the definition of a private detective business influenced the Governor's decision.
In HB 504 the PI lobby tried to cure the problems by expanding the exemptions for those not intended to be covered by the definition. Of course, this effort failed because at the same time the revised definition would have made the PI license a kind of super license, which was never anyone’s intent even though it would have reconciled the differences between statutory definition and practical, albeit seemingly arbitrary, application. The fact that these differences exist and that they are so great only further exemplifies the confusion inherent in the statute whose resolution may require advanced legal training. Surely some would argue whether such training constitutes "ordinary intelligence".
Kennard v Rosenberg
Those still on the fence and wanting a more legalistic rationalization may want to consider a California case used over the years by some states to temper their own overreaching PI Boards. In the case Kennard v Rosenberg, 127 Cal.App.2d 340, 273 P.2d 839 (1954) the court made several useful findings.
First it stated, "[W]e conclude that it was the intent of the legislature to require those who engage in business as private investigators and detectives to first procure a license so to do; that the statute was enacted to regulate and control this business in the public interests; that it was not intended to apply to persons who, as experts, where employed as here, to make tests, conduct experiments and act as consultants in a case requiring the use of technical knowledge."
In Georgia, the legislature has done likewise. The private security statute is captured in Title 43 of Georgia's code governing professions and business while expert testimony is captured in Title 24 of Georgia's code governing evidence. The two are clearly distinguishable particularly since the legislature's expressed intent articulated in OCGA 24-9-67.1(f) confirms that licensing in general or PI licensing in particular is not required for expert witnesses except in malpractice cases. In addition, the Governor's veto of HB 1259 and the subsequent failure of HB 504, indicate that the Board's 2007 opinion letter is nothing more than the continuance of a failed agenda under color of law.
Second, the court in Kennard concluded, "Where statute is susceptible of two constructions, one leading inevitably to mischief or absurdity, and the other consistent with justice, sound sense and wise policy, the former should be rejected and latter adopted." So, even if the Board's interpretation of its authorizing statute were meritorious, its opinion in this case should be jettisoned.
For example, in 2006, after HB 1259 cleared the General Assembly and had gone to Governor Perdue for signature, a group of concerned citizens pointed out that only recently had researchers at the University of Binghamton in the State of New York developed a method for linking digital images to the camera that took them. Clearly, this new technology could have immense ramifications in the fight against child pornography as well as other scenarios. Since this subject involves digital technology, it would also be considered “computer forensics” when presented by an expert witness in a litigation environment.
The group also pointed out that it is highly unlikely that these New York state researchers were licensed private investigators. It is even more unlikely that they were licensed private investigators in the State of Georgia. Furthermore, could they even qualify for a private investigator’s license in Georgia? If so, how long would it take them to obtain a license if they could? If they could not qualify, or were not interested in obtaining one, how long would it take a licensed private investigator to become an expert and then qualify as an expert witness in the new technology, if ever at all?
If a licensed PI could not qualify, would such a requirement have deprived Georgia citizens of important legal rights? If the State could use its licensing power in a criminal case to suppress exculpatory expert testimony would that be a Brady violation? (see Brady v Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), "Suppression by prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of prosecution. U.S.C.A. Const. Amend. 14.")
So, is negating a citizen's Constitutional rights the kind of protection that the Legislature intended the private security statute to provide for the citizens of Georgia? Could it also result in expert testimony that would not be accepted in other states contrary to the expressed intent of the legislature in OCGA 24-9-67?
So, is a PI license requirement for computer forensics consistent with justice, sound sense and wise policy? Or, is it an absurdity that would inevitably lead to mischief?
Rules of Statutory Construction
While the question of private detective licensing versus expert qualifications would be a case of first impression for Georgia courts, the Georgia courts have adopted the same tenants of statutory construction that are exhibited in the preceding California case, Kennard v Rosenberg. So, their adoption of similar construction rules would surely produce similar results.
In State v Hix, 220 Ga. App. 651, 469 S.E.2d 497, reconsideration denied, certiorari denied, (1996) the Appeals court said, "In construing statute, court looks to literal language of statute, rules of statutory construction, and rules of reason and logic, most important of which is to construe statute so as to give effect to legislature's intent." With regard to testifying experts, the legislature's intent is no mystery. It has been memorialized in the controlling statute, OCGA 24-9-67, and licensing is not a requirement except in malpractice cases.
In Adventure Outdoors, Inc. v Bloomberg, et al, 2010 WL 4751675 (Ga .App.), the Appeals court said, "One of the cardinal rules of statutory construction requires the courts to consider the consequences of any proposed interpretation and not construe the statute to reach an unreasonable result unintended by the legislature." Clearly, interpreting the definition of private detective business contained in OCGA 43-38-3 to include expert witnesses with their professional licensing under the Board is both absurd and clearly not intended by the legislature given the separate statutory provisions of Title 43 and Title 24 and the legislature's expressed intent to the contrary memorialized in Title 24.
Licensing advocates argue that, while the evidence statute allows unlicensed experts to testify, under the professional statute they are still practicing without a license and subject to its consequences. Thankfully, this is the kind of silliness that statutory construction rules are designed to eliminate. After all, how could the legislature’s intent of not requiring a license ever be accomplished if that intention did not extend to the application of professional licenses? In fact, the chilling effect that such an interpretation would have on Georgia's citizens access to forensic experts is the unintended consequences mentioned by Gov Perdue when he vetoed HB 1259. Besides, what silliness would argue that the proper construction of a statute results in an illegal act when following the legislature's expressed intent?
In Mauer v Parker Fibernet, LLC, 306 Ga. App. 160, 701 S.E.2d 599 (2010), the Appeals court said, "Under the rules of statutory construction, a specific statute normally prevails over a general one." In this case, the qualifications for the admissibility of expert testimony are specifically addressed in OCGA 24-9-67, while they are not addressed by the statutory provisions governing private detectives. Indeed, the only intersection of forensic experts and the private detective business is in the 2007 opinion letter issued by the Board in search of a membership.
The Board cannot even claim that its 2007 opinion is within its rule making authority, since they do not have legislative authority and are constrained to implementing the laws passed by the General Assembly. (see North Fulton Medical Center v Stephenson, et al, Northside Hospital et al v Stephenson, et al, 269 Ga. 540, 501 S.E.2d 798 (1998), "[Administrative agencies are] authorized only to take action that carries into effect those laws already passed by the General Assembly; it has no constitutional authority to legislate, and it may not establish rules that conflict with legislation.") Clearly, in this case licensing of expert witnesses is not required. The governance of expert witnesses is not within the Board's charter. So, the Board's 2007 opinion letter is contrary to law and beyond its rule making authority.
Other Persuasive Precedent
Since the California decision in Kennard, and in more recent times, other states have also wrestled with the question of whether forensic experts should be licensed. While most have involved other professions like engineering, at least three cases have involved private investigators.
Donegal Mutual Insurance Comany v White Consolidated Industries
In Donegal Mutual Insurance Company v White Consolidated Industries, 121 Ohio Misc.2d 14, 779 N.E.2d 1111, (2002) the Ohio Court of Common Pleas for Darke County addressed the specific issue of whether a forensic expert required a private investigator license. In that case the court held that a witnesses' failure to obtain a private investigators license from the state did not preclude them from testifying. The court explained its opinion by stating that, “. . . [T]his court does not agree that a failure to obtain a license is a per se exclusion from testifying. This court does not interpret Pennsylvania Lumbermens as a mandate to exclude testimony when a ‘private investigator’ does not comply with registration requirements. In the absence of a statutory mandate, this court finds no reason to enforce this statute when Evid. R. 601 and 702 et seq. and R.C. 2317.01 have been fulfilled.” (Emphasis added)
Susan Lukjan v Commonwealth of Kentucky
In the case of Susan Lukjan, Appellant, v. Commonwealth of Kentucky, Appellee. No. 2010-CA-001509-MR. Court of Appeals of Kentucky, 2012 WL 95556, January 13, 2012, the Kentucky Court of Appeals reversed and remanded a lower court decision where the defendant's forensic expert was excluded because the expert was not a licensed PI.
In its decision, the Appeals court reasoned that, "Reading the plain language of the statutes, we believe the General Assembly meant only to prohibit an unlicensed individual from offering private investigation services to the public; hence, the prohibition against 'hold[ing oneself] out to the public as a private investigator[.]' KRS 329A.015. Providing testimony in a court proceeding is not the equivalent of selling the public one's services as a private detective." (emphasis added) (See Another Domino Falls: Kentucky PI Statutes Have no Evidentiary Effect)
The lower court interpreted KRS 329A.015 and KRS 329A.010 as disqualifying Lukjan's expert, since KRS 329A.015 prohibits an individual from, "hold[ing] himself or herself out to the public as a private investigator, or [to] use any terms, titles, or abbreviations that express, infer [sic], or imply that the person is licensed as a private investigator unless the person at the time holds a license to practice private investigating issued and validly existing under the laws of this Commonwealth as provided in this chapter."
In addition, “Private investigating” is defined as “the act of any individual or company engaging in the business of obtaining or furnishing information with reference to ... [t]he cause or responsibility for fires ... [.]”KRS 329A.010(4)(d). It was undisputed that Hicks was not a licensed private investigator.
As a result, the lower court ruled that the plain language of these statutes prohibited the testimony because “furnishing information with reference to ... [t]he cause or responsibility for” the fire at Lukjan's business is precisely what the witness' testimony would be doing. Consequently, permitting Hicks to testify, the circuit court reasoned, would amount to permitting a crime to be committed in the courtroom.
The Appeals court reasoned differently, however. In its opinion, "The Board is empowered to oversee the licensure and discipline of private investigators, and regulates those individuals and companies in the business of providing private investigative services. See KRS 329A.025; see also201 Kentucky Administrative Regulations (KAR) 41:020, 201 KAR 41:080."
Since the PI statute did not also address forensic experts or place them under the licensing Board's purview, the Court did not interpret the PI statute as governing that kind of work. ("Our review has uncovered nothing in the relevant statutes or the applicable regulations which specifically addresses an individual's ability to testify as an expert witness on the cause and/or origin of a fire. Indeed, it appears the Board has no role to play in that sort of inquiry." )
Without expressed language governing experts in the PI statute, the Court was then persuaded by the decision in Hincapie v. Charron, 2006 WL 1947765 (Ky.App.2006) (2005–CA–000342–MR) where a different Appeals court panel concluded that, ". . . KRE 702, which governs the admissibility of experts, does not require any particular licensure."
Considering both statutes the Court concluded that, "Kentucky's statutes governing the practice of private investigating are simply not meant to have any evidentiary effect, and to prohibit the testimony of Lukjan's expert on that basis was erroneous." (emphasis added)
Earlier in this article it was questioned whether suppression of exculpatory evidence by way of the State's licensing power would be a Brady violation. While the Lukjan Court did not reference Brady in its opinion, it did say that, "We further hold that excluding Hicks's testimony was not harmless. . . .In the absence of Hicks's testimony, Lukjan's defense consisted of no expert opinion rebutting the Commonwealth's evidence that arson was indeed the cause of the fire. Such testimony raises the substantial possibility that the jury would have reached a different outcome."
Lukjan's defense was based on a theory that the fire had actually been started by a lightning strike that had occurred earlier in the day during a thunderstorm. Apparently, Lukjan's expert, Hicks, was going to use lightning strike data to render an opinion that the cause for the fire was the earlier lightning storm and not arson.
Since Hicks was not licensed as a PI, the State used its licensing power to suppress exculpatory evidence in Lukjan's defense. While the Appeals court did not consider Brady per se, it thought that the exclusion "was not harmless", which is a subjective determination under Kentucky rules. In any event, a rigid application of licensing requirements clearly caused problems in this criminal case and would likely cause similar problems in other criminal matters.
So, the protections offered defendants in criminal matters is clearly not harmonious with professional licensing requirements. Consequently, it is unlikely that such licensing would ever succeed or should even be required in forensic matters, particularly in criminal cases.
United States v Commonwealth of Virginia
In United States v Commonwealth of Virginia, 139 F.3d 984, 42 Cont.Cas.Fed. (CCH) P 77,271 (1998), The Appeals court held that Virginia could not require that Background Investigation Contract Service (BICS) contractors working solely for the FBI comply with its licensing and registration requirements for private security services that required licensing and registration of private investigators. In affirming the District court’s decision the Appeals court relied on numerous Supreme Court decisions where states and their various licensing boards were not allowed to substitute their judgment of adequacy or impose additional requirements on federal contractors beyond those that the federal government considered adequate.
Sperry v State of Florida ex rel The Florida Bar
Interestingly, one of the many cases on which the appeals court in the preceding Virginia case based its decision was Sperry v State of Florida ex rel The Florida Bar, 373 U.S. 379, 83 S.Ct. 1322 (1963). In Sperry the United States Supreme Court held that the State of Florida and its licensing board could not enjoin a nonlawyer registered to practice before the United States Patent Office from preparing and prosecuting patent applications in Florida even though such activity constituted the practice of law in Florida, since a federal statute and Patent Office regulations authorized practice before the Patent Office by nonlawyers.
The court explained its reasoning as, “A State may not enforce licensing requirements which, though valid in the absence of federal regulation, give ‘the State's licensing board a virtual power of review over the federal determination’ that a person or agency is qualified and entitled to perform certain functions, or which impose upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress.”
Clearly, the Sperry decision has significant consequence to the Georgia Board’s 2007 opinion letter, at least with respect to computer forensic experts in Georgia’s federal courts. Not only do the federal rules of evidence not require that an expert be licensed, the rules are acts of Congress and are not subject to reveiw by states or any additional requirements imposed by states. So, even if the Board's 2007 letter was relevant to the qualification of expert witnesses in Georgia, it would be limited to state courts.
Thompson v Gordon
In another highly litigated outcome the Illinois Supreme Court considered whether the forensic expert was required to have an engineering license. At issue was whether a civil engineer must be licensed in Illinois pursuant to the Professional Engineering Practice Act of 1989 (the Engineering Act) (225 ILCS 325/1 et seq. (West 2002)), in order to testify as an opinion witness in an Illinois civil action.
The circuit court of Lake County held that an engineer must be licensed in the State of Illinois to participate as an expert witness in litigation pending in Illinois. The appellate court reversed. 356 Ill.App.3d 447, 293 Ill.Dec. 102, 827 N.E.2d 983. The Supreme Court in Thompson v Gordon, 221 Ill.2d 414, 851 N.E.2d 1231, 303 Ill.Dec. 806 (2006), then affirmed the Appeals court decision and decided that, “a witness' compliance with a licensing requirement is not a prerequisite to admissibility of the witness' expert testimony, and instead is merely a factor to be weighed in considering whether the witness is qualified as an expert.”
The Thompson decision is particularly significant in this debate for two reasons. First, it overruled the prior Illinois precedent in People v West, 264 Ill. App.3d 176, 636 N.E.2d 1239, 201 Ill. Dec. 807 (1994) that held just the opposite. (“To the extent that West may be read as holding that licensing is a prerequisite to the admissibility of expert testimony rather than a factor to be weighed in considering expert qualifications, we overrule that portion of the West decision and reject defendants' argument that West controls the disposition of this case.”) Second, the prior decision in West is often cited by PI advocates as the support for their supremacy.
Interestingly in reaching its decision, the court in Thompson considered many aspects of Illinois law that are similar to those in Georgia. For example, the court considered the Illinois legislature’s separate standards for expert witnesses versus occupational licensing requirements--similar to Georgia’s separation of Title 24 and 43. In addition, the court considered the fact that in Illinois’ separate standards for expert witnesses the legislature had expressly imposed licensing requirements in certain situations but not in others—similar to what the Georgia legislature has done for experts in malpractice cases.
In resolving this issue the Thompson court explained that, “We find the fact that the legislature has specifically provided for expert witness standards in medical malpractice cases weighs in favor of affirming the appellate court's decision in this case. As the appellate court stated, ‘if the legislature wanted to condition any testimony by a professional on whether the individual holds a state license, it could enact a statute setting standards for such expert witnesses, as it has done in cases in which the standard of care applicable to a medical professional is at issue.’ Merely providing that an engineer engaging in forensic engineering must be licensed in Illinois is not sufficient to establish that a license is a prerequisite to qualifying as an expert witness in a civil case in Illinois.”
The court also explained why licensing of forensic experts has little meaning other than credibility. Furthermore, in the arena of litigation it does nothing to protect the public as is often the stated reason for licensing in occupation statutes. The difference for litigation situations is that experts are for the benefit of the trier of fact and there is more to evaluating them than their passing grade on an exam. In Thompson the court explained that, “The trial court's gatekeeping function is to determine whether an individual is qualified to be an expert, not merely by determining whether that individual took an exam and can display a piece of paper showing a passing mark, but by reviewing the individual's credentials, experience, and knowledge of the subject matter. The trial court's function is also to determine whether that expert's testimony would assist the trier of fact.”
So, when resolving the question of licensing for forensic experts in circumstances similar to Georgia’s, the Illinois Appeals court followed the statutory construction standards discussed above and rejected the notion that licenses are required.
Arthur v Bolen
In Arthur v Bolen, 41 So.3d 745 (2010), the Supreme Court of Alabama also considered whether forensic engineers must be licensed. In Arthur, the court concluded that under Alabama law a license was only needed when the expert was testifying about a breach of professional care; otherwise, as was the case in Aurthur, experts need not be licensed.
The court explained its reasoning as, “It is clear that the possession of an Alabama license is never the sine qua non of the proffered expert witness's qualification. The crux of the legislature's intent as to the giving of expert testimony is expressed in subpart d. of § 34-11-1(7), which is obviously aimed only at the threshold procedure for establishing a breach of the standard of care applicable to Alabama engineers. In that respect, it is reminiscent of Ala. Code 1975, § 6-5-548(e), which, in speaking to the 'relative standard of care for health care providers,' restricts expert testimony to witnesses who are 'similarly situated'. Section 34-11-1(7)d. is concerned with testimony regarding work performed, or required to be performed, in Alabama pursuant to an Alabama engineering license. In such a case, the testimony must come from a witness holding an engineer's license 'in any jurisdiction'."
So, once again, when faced with circumstances similar to Georgia, a high court of another state followed the construction tenants discussed previously and rejected the notion that forensic experts required licensing except as expressly described by the legislature in the specific controlling statute. The conclusion therefore is that Georgia’s already established precedent is no anomaly. Rather it is quite consistent with well reasoned legal logic.
American Bar Weighs-In
Finally, in 2008 the American Bar Association released its opinion against PI licensing of computer forensic experts in recognition of the mismatch between PI and IT skills and training. At least at that time, computer technology was not even part of the PI licensing or training curriculum. Moreover, in many states, PIs were advised to seek the help of experts when confronted with technology issues. In fact, 30 percent of the Georgia PI license test involves surveillance and weapons handling skills.
Conclusion
In the final analysis, what is lacking in this case is a statutory provision requiring forensic experts to have a PI license. Instead, all that really exists is a letter from the Secretary of State conveying a Board opinion that was prompted by an inquiry from a New York state PI inquiring about Georgia's PI licensing requirements for computer forensic experts after legislative initiative to accomplish the same ends had failed in Georgia.
In the letter, therefore, the Secretary of State is just parrotting the Board's response to the inquiry. So, it is not an opinion by the Secretary of State, the state Attorney General, a judicial forum or some other persuasive source that has actually reviewed the various statutory requirements and rendered a thoughtful opinion. Indeed, in this case the Secretary of State is nothing more than an unwitting participant in what may well be a misinformation compaign devised after the PI lobby's legislative efforts to increase its membership had failed in Georgia. Interestingly, there is not an authoritative pronouncement of the requirement on the PI Board's website of its interpretation in this case or any other.
Of course, even if the Board's 2007 opinion letter was meaningful, it is erroneous nonetheless. The requirements for professional licensing and forensic experts are distinguishable. Under Georgia statutes, private investigators provide information while forensic experts provide opinion. Thus, even by definition forensic experts are not under the Board's purview.
In addition, expert testimony is for the benefit of the trier of fact. Under Daubert and its progeny the Supreme Court has made the judiciary the gatekeeper for the admissibility of forensic experts and not the professional licensing boards. The Georgia Legislature has done likewise by expressly incorporating Daubert and its progeny in the statutes governing expert witnesses in civil matters. Furthermore, the Georgia courts have followed similar logic in a long line of case precedents that have rejected the notion that professional licenses are required for forensic experts. For example, in Nelson v State the Appeals Court explained, “This Court has repeatedly held that it is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert.” In fact, the Appeals court in Nelson v State characterized a defendant's arguments against unlicensed expert testimony as "meritless".
Remarkably, the Board's 2007 opinion is unlawful. Administrative agencies may not legislate. Indeed, they may only implement the laws passed by the Georgia General Assembly. In Georgia, the laws passed by the General Assembly regarding expert witnesses do not require professional licensing except in malpractice cases.
Even if the Board's 2007 opinion was lawful, it would only apply to expert witnesses in Georgia's state courts, since the Federal Rules of Evidence that apply in Georgia's federal courts are acts of Congress and the Supreme Court in Sperry v State of Florida ex rel The Florida Bar said, “A State may not enforce licensing requirements which, though valid in the absence of federal regulation, give ‘the State's licensing board a virtual power of review over the federal determination’ that a person or agency is qualified and entitled to perform certain functions, or which impose upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress.” So, even if the Board's 2007 opinion was lawful, it has no authority on Federal cases in Georgia.
Finally, the admissibility of unlicensed expert witnesses is not limited to their testimony. Rather it extends to the work they performed in developing their opinion since both the federal and Georgia cases as well as their respective rules of evidence require that experts base their work on a reliable foundation, which often means making their own tests, taking their own measurements, or at least reviewing and confirming the work done by others.
Clearly, advocacy in Georgia for a private detective licensing restriction for computer forensic experts only evidences the ignorance of the individuals about the very subject matter they claim would benefit from their expertise. In fact, the reality is that a licensing restriction for expert witnesses in general and computer forensics in particular does not promote expertise. Rather, it protects and promotes incompetence--the very opposite of what its advocates claim to seek.
Some have theorized that what is actually happening here is that anyone with a credit card and access to the internet can obtain a background check. So, the PI profession may be going the way of the elevator operator. Consequently, is the profession simply leveraging the amorphous definition of a private detective business to find new blood? If so, they have picked the wrong host.
For the last several years there has actually been a nationwide effort by the PI lobby to stakeout the computer forensic territory. Georgia was fortunate to have stopped the legislative efforts here. Other states, like Rhode Island, recognized the rising tide and modified their statutes to expressly prohibit the PI takeover. Still other states, like South Carolina, went the route but are now in the process of undoing their mistake (see S 580).
So, those seeking a computer forensic expert should reject the advice of those claiming that a PI licensing requirement exists in Georgia. At best, it is an erroneous Board overstepping its authority. At worst, it is a misinformation compaign by a licensing board, under color of law, in search of a membership. In either case, it is just wishful thinking by those hoping to secure an economic advantage by raising the specter of a licensing requirement.
When individuals or organizations are encountered suggesting that a PI license is required in Georgia, one may need to question their competence and skill sets. Of course, if the case also requires surveillance and weapons handling, they could be a good fit.