(This article first appeared in the Fall 2014 issue of Expert Witness, a publication of the
Expert Witness Committee of the Litigation Section of the American Bar Association)

It has become a common claim these days that computer forensic experts must have a private investigator (PI) license. The definition of PIs in most state occupational statutes is very amorphous. In fact, if followed literally, few would ever escape the requirement to have a PI license before doing anything; and the PI boards have been abusing the definition to gain membership by claiming that a requirement exists for computer forensic experts.

Some theorize that what is really happening is that anyone with a credit card and access to the Internet can perform a background check. Thus, the PI profession may be going the way of the elevator operator, and the various state licensing boards are battling against progress.

While licensing requirements are often raised in hopes of neutralizing a damaging expert, these arguments tend to fail. When they do succeed, it is likely due to the ambush value of such a tactic when it catches counsel in unfamiliar waters and unprepared for the undertow.

What is really amazing is the number of computer forensic practitioners that parrot and play along with the ruse and the phony claims by many state PI boards. For many, the attraction could be the barrier to entry that protects their turf from competition or a sales gimmick about a problem that only they can solve as a result of their licensed status.

Some also think that licensing improves the profession and keeps out the riff-raff, although how that is accomplished is somewhat of a mystery because the various state PI licensing exams do not test or even teach computer forensic proficiency. For others, it is just a means to avoid trouble with a licensing board abusing its power under color of law. Still others think that it will protect clients from needless expense and argument; however, those experts are mistaken if they think that bulletproofing a client from an opposing counsel is achieved through appeasement, or even worse, compromising a client’s case with someone whose contribution is a passing grade on an irrelevant exam.

The reality is that experts do not need a license in federal court. In fact, state licensing boards have no say in the matter when the venue is federal court.

Where state licensing boards could have an effect is in state court, but most states model their evidence statutes after the Federal Rules of Evidence and never mention a license or at least severely restrict when a license is required. For example, these days it is popular for states to require experts in malpractice cases to have a license in the professional field about which they will be opining.

The following sections examine the PI licensing issue in particular and expert licensing in general for both federal and state courts.

Professional Licensing in Federal Courts

Admissibility of forensic experts in federal cases is controlled by Rule 702 of the Federal Rules of Evidence (FRE). Rule 702 prescribes several conditions for admissibility, but none of them involves a license issued by any state occupational board much less a state’s PI board. Indeed, under the FRE a license goes simply to credibility. Dickerson v. Cushman, Inc., 909 F. Supp. 1467 (M.D. Ala. 1995).

While licensing advocates often argue that to permit unlicensed experts to testify would be sanctioning a violation of the law, federal courts have rejected those arguments. Calvetti v. Antcliff, 346 F. Supp. 2d 92, 112 (D.D.C. 2004). In fact, the Supreme Court has assigned “to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 597 (1993). Thus, state licensing boards simply have no say in the matter when the venue is federal court.

Not only is a license not required for forensic experts in federal courts, but states may not impose additional requirements not contemplated by Congress. Sperry v. Florida, 373 U.S. 379 (1963). The specific issue of a state’s PI licensing requirements has even been considered, at least in the context of federal contractors performing background investigations. In that case, after considering numerous federal decisions involving state licensing issues including the Supreme Court decision in Sperry, it was decided that Virginia could not frustrate federal laws by giving itself the power of review by way of a licensing requirement. United States v. Commonwealth of Virginia, 139 F.3d 984 (4th Cir. 1998).

Professional Licensing in State Courts

Whether or not licensing of forensic experts is required in state courts is a different analysis. The requirements of forensic experts are typically addressed in a state’s evidence statute, while a state’s professional licensing requirements are addressed in its occupational statutes. Determining which statutes control the licensing of forensic experts typically involves statutory construction analysis to determine the intent of the state’s legislature.

In Thompson v. Gordon, 851 N.E.2d 1231 (Ill. 2006), the Illinois Supreme Court considered the Illinois legislature’s separate standards for expert witnesses under its evidence statutes versus licensing under its occupational statutes. In addition, the court considered the fact that the legislature had expressly imposed licensing requirements in malpractice situations but not in other situations under its evidence statutes. Thus, the Illinois Supreme Court decided in favor of the evidence statutes over the occupational statutes.

The Thompson decision is important to the PI licensing issue because it overruled the prior Illinois precedent in People v. West, 636 N.E.2d 1239 (Ill. App. Ct. 1994), to the extent that it held that a license was a prerequisite to expert admissibility. The fact that part of West has been overruled is quite significant, because it is often cited by PI advocates as the basis for their dominion over forensic experts.

In the recent case of Lukjan v. Commonwealth, 358 S.W.3d 33 (Ky. Ct. App. 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 Lukjan, the appeals court did similar statutory construction analysis and decided that “[p]roviding testimony in a court proceeding is not the equivalent of selling the public one’s services as a private detective. . . . Kentucky’s statutes governing the practice of private investigating are simply not meant to have any evidentiary effect.” 358 S.W.3d at 38–39 (emphasis added).

The Lukjan case is also instructive about the unintended consequence of a license requirement. In Lukjan, the license requirement was used by the prosecution at the trial court to suppress exculpatory evidence, which was an act characterized by the appeals court as “not harmless.” 358 S.W.3d at 39.

Oftentimes, a court’s statutory construction analysis is determined simply in favor of a detailed statute over a general statute. In Donegal Mutual Insurance Co. v. White Consolidated Industries, Inc., 121 Ohio Misc. 2d 14 (Ct. Com. Pl. 2002), the Ohio Court of Common Pleas for Darke County also addressed the specific issue of whether a forensic expert required a PI license and held that the witnesses’ failure to obtain PI licenses from the state did not preclude them from testifying. In other words, the detailed statute, the evidence statute in this case, prevails over the more general statute, the occupational statute.

One of the oldest cases to consider the PI licensing question is Kennard v. Rosenberg, 273 P.2d 839 (Cal. Ct. App. 1954). In that case, the appeals court also saw a difference between offering services to the public and testifying in court as an expert. As a result, the court decided that “where a 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 the latter adopted.” Kennard, 273 P.2d at 842.

Although there are countless state court decisions involving licensing of forensic experts and finding in favor of the evidence statutes, there are two Alabama decisions that are particularly instructive when examining the licensing issue in state courts. The first is Wood v. State, 891 So. 2d 398 (Ala. Crim. App. 2003). Besides finding in favor of the evidence statutes, the decision is very useful because it examines decisions in many other states like Alaska, Arkansas, Georgia, Iowa, Louisiana, New York, Pennsylvania, Tennessee, and Virginia to name a few, where courts in those states had also grappled with the applicability of professional licensing to forensic experts and generally found that the occupational statutes have no effect on the evidence statutes.

One of the more persuasive and amusing decisions mentioned and considered in Wood involved a Rhode Island case, Owens v. Payless Cashways, Inc., 670 A.2d 1240 (R.I. 1996). In that case, the issue involved whether rules governing licensing of engineers supplanted judicial discretion regarding the qualification of experts under Rhode Island evidence rules. In making its decision, the Owens court reasoned that the professional licensing and evidence statutes were not in conflict and that the qualification of expert witnesses and the matters about which they may testify are within the sound discretion of the trial judge. The court further explained that the expert is there to assist the trier of fact and that persons of great learning, like Archimedes or Wernher Von Braun, should not be barred from courts simply because they are not licensed.

The second Alabama case that is particularly instructive is Arthur v. Bolen, 41 So. 3d 745 (Ala. 2010). In that case, the Supreme Court of Alabama also considered whether forensic engineers must be licensed. This case is distinguishable from Wood in two respects. First, the Arthur decision involved engineers rather than psychologists. Second, Alabama’s occupational statute for engineers had previously contemplated expert testimony, while Alabama’s occupational statute for psychologists had not.

The story in Arthur began in 1997 when the Alabama legislature made changes to the engineering occupational statute and expressly included expert testimony as part of the definition of engineering. It was not until 2006, however, when the issue appeared in the case of Board of Water & Sewer Commissioners of Mobile v. Hunter, 956 So. 2d 403 (Ala. 2006), that the Alabama Supreme Court decided that by including expert testimony in the occupational definition of engineering that the legislature had superimposed the licensing requirement onto the evidence statutes, specifically Rule 702 of the Alabama Rules of Evidence. Consequently, in Hunter a license was required for an engineer to testify as an expert.

Interestingly, in the next legislative session following the Hunter decision, the Alabama legislature again changed the definition of engineering and omitted expert testimony from the definition in the occupational statute but left the licensing requirement in malpractice cases in the evidence statutes, which apparently was its intent in the first place. As a result, when the Alabama Supreme Court addressed the issue again in Arthur, it permitted the testimony of an unlicensed engineer about the attachment of a staircase because his opinion did not involve the design of the staircase.

Testifying vs. Other Work Performed by Forensic Experts

Hardcore PI advocates will review the various court decisions where a license requirement for forensic experts was rejected and claim that while experts can testify without having a license, they would still break the law by performing any other work. This kind of logic is also doomed, however.

Usually under the various rules of evidence, forensic experts must base their opinions on a reliable foundation. This often means making their own tests and taking their own measurements. They simply cannot rely on opinions provided by others unless they have at least taken steps to perform or review the work themselves and form an opinion. In re Polypropylene Carpet Antitrust Litig., 93 F. Supp. 2d 1348 (N.D. Ga. 2000); Williamson v. Harvey Smith, Inc., 542 S.E.2d 151 (Ga. Ct. App. 2000).

The significance of the evidence statutes, particularly those involving experts, has broad-based application to litigation matters. Essentially, anyone can be called to testify whether he or she actually testifies or not. Consequently, actual testimony should not be the determining criterion. Rather, the fact that one could be called to testify as an expert for any number of reasons should be sufficient to trigger the rules of evidence and its related criteria when litigators are preparing their case.

Under rules of evidence, matters involving scientific, technical, or specialized knowledge are generally reserved for experts. What actually constitutes scientific, technical, or specialized knowledge can be a low bar because the determining factor is whether or not the information is “familiar in everyday life” and “in possession of the jurors.” United States v. Wilson, 408 F. App’x 798 (5th Cir. 2010); United States v. Johnson, 617 F.3d 286 (5th Cir. 2010).

Courts have even analogized the interpretation of computer forensic reports to specialized medical tests and interpretation by police officers of slang and code words used by drug dealers, which they have deemed specialized knowledge of an expert. United States v. Ganier, 468 F.3d 920 (6th Cir. 2006).

Constitutional Challenges to Professional Licensing Requirements

If you find yourself in a situation where professional licensing of forensic experts is required and you are contemplating a constitutional challenge, be sure to review the decision in Hunter. In that case, the Hunters challenged the Alabama engineering licensing law on various constitutional grounds and lost. So, the case is instructive of the obstacles that must be overcome.

With regard to the PI licensing issue, however, the matter is likely much simpler and does not pose a constitutional question. Typically, the PI license issue is not one that is consistent with legislative intent and requirements clearly articulated in statutory language. Rather, it is just a licensing board improperly applying its amorphous definition of private investigator/detective to forensic experts. Administrative agencies, like licensing boards, are usually only authorized to implement the laws passed by the legislature. N. Fulton Med. Ctr. v. Stephenson, 501 S.E.2d 798 (Ga. 1998).

Conclusion

The question of whether computer forensic experts require a PI license is currently a hot topic in American jurisprudence. Numerous groups and individuals have invested considerable time in answering the question for those who are interested. Unfortunately, the work by most of these researchers is usually limited to the various state PI licensing statutes and opinions by the PI boards. Thus, they never consider applicability of the evidence statutes, controlling precedent, or any analysis of legislative intent.

The reality is that a PI license is not required in federal courts. The answer is more complicated for state courts and requires some amount of statutory construction analysis on a state-by-state basis. Generally, however, a state’s evidence statutes tend to trump that state’s occupational statutes when forensic experts are the subject of the analysis.

Also, the impotence of the licensing statutes is not limited to an expert’s actual testimony. Indeed, the supremacy of the evidence statutes will extend to the work performed by the forensic expert in developing his or her opinion, because it must be based on a “reliable foundation.”

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