Gregory L Fordham
(last updated January 2012)
On 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 Private Investigator (PI). (see, Susan Lukjan, Appellant, v. Commonwealth of Kentucky, Appellee. No. 2010-CA-001509-MR. Court of Appeals of Kentucky, 2012 WL 95556, January 13, 2012.)
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. . . . 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)
This decision is important from three perspectives. The first is the broader question of whether forensic experts must be licensed when their work involves professions requiring a license. In Kentucky, the PI license has no evidentiary effect. So, in a forensic setting anyone can do what PIs do without having to have a PI license.
The second is the narrower question of whether computer forensic experts need a PI license. In the last several years there has been a nationwide effort by the PI profession to capture the computer forensic profession for itself (see Do Computer Forensic Experts Need a PI License in Georgia?). In Kentucky, it is now clear that computer forensic experts do not need a PI license, since the PI statute has no evidentiary value in Kentucky.
Finally, since many states model their state rules of evidence after the federal rules of evidence, the state statutes in this area are often quite similar. Interestingly, the PI statutes of many states are also very similar. Thus, it is quite possible to take the decision of the Kentucky Court of Appeals and apply its logic in other states where the historical record in that jurisdiction lacks directly controlling precedent.
In this recent Kentucky case, Susan Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300. She was sentenced to serve a total of twelve years of imprisonment.
During her trial, three fire scene investigators were designated as expert witnesses for the prosecution. They testified that in their opinion the fire was intentionally set in the basement of the building. In her defense, Lukjan attempted to present the expert opinion testimony of William D. Hicks, Jr., an assistant professor at Eastern Kentucky University who teaches courses related to fire safety and fire investigations.
The lower court interpreted KRS 329A.015 and KRS 329A.010 as disqualifying Hicks as an 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 lowert 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 focused on the evidence statutes and concluded that, ". . . KRE 702, which governs the admissibility of experts, does not require any particular licensure."
Considering both the evidence statutes and the professional licensing 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."
In Federal cases, it is well settled that Rule 702 of the Federal Rules of Evidence in Title 28 of the United States Code does not require an expert witness to be licensed. Rather, a professional license only goes to 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). "
In addition the Supreme Court in Sperry v State of Florida ex rel The Florida Bar, 373 U.S. 379, 83 S.Ct. 1322 (1963) held that “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.” The Federal Rules of Evidence are an act of Congress and, thus, are not subordinate to state licensing boards in Federal court.
For criminal cases, as compared to civil, there are other factors to consider. In Brady v Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963) the Supreme Court held that, "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, if the State could use its licensing power in a criminal case to suppress exculpatory expert testimony would that be a Brady violation?
At the State level, though, the rub is that a state's rules of evidence typically follow the federal rules and do not require experts to be licensed; yet, for individuals to practice certain professions they must be licensed. So, the question, in the case of forensic experts, is whether the two overlap? If so, which one governs?
While this appears to be a case of first impression for the Kentucky Court of Appeals, at least in a published decision, it is consistent with a long history where litigants, supposedly educated in rules of evidence, have tried unsuccessfully to disarm their opponents with a licensing argument.
One of the oldest cases, that also happens to involve private investigators and has been used by other states to temper their own overreaching PI Boards, is the 1954 California decision in Kennard v Rosenberg, 127 Cal.App.2d 340, 273 P.2d 839 (1954). In that case the California Appeals court made two similar findings to those in this recent Kentucky decision.
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."
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."
In more recent times, the Illinois Supreme court, for example, considered whether a forensic expert was required to have an engineering license. In Thompson v Gordon, 221 Ill.2d 414, 851 N.E.2d 1231, 303 Ill.Dec. 806 (2006), the Illinois Supreme court affirmed the Appeals court decision in deciding 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.”
While there is no shortage of these kinds of decisions in various state and federal courts, the Kentucky Appeals Court could only point to one prior Appeals Court decision. It was an unpublished decision in Hincapie. In that case, a different Appeals court panel concluded, ". . . KRE 702, which governs the admissibility of experts, does not require any particular licensure."
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 decision 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.
There are plenty of lessons in this case. Obviously, the first is that in Kentucky the PI statutes have no evidentiary effect and are trumped by the evidence statutes when dealing with forensic experts. This lesson can be viewed in a broader context, however.
In the parlance of statutory construction rules, the PI statute is a general statute while the evidence statute is the detailed statute, at least with respect to the licensing of forensic experts. Under statutory construction rules, the detailed statute prevails. Just like it prevailed in this case.
Second, since this decision confirms that in Kentucky, at least, that the PI statutes have no evidentiary effect, a PI license is also not required in Kentucky for the narrower instance of computer forensic experts as has been argued in Kentucky just like in many other states around the country.
Third, while intuitively appealing or "understandable" as characterized by the Appeals court in this case, a licensing argument is actually a weak one in both federal and state courts. Federal Rules of Evidence do not require that an expert be licensed. Furthermore, they would trump any state professional licensing requirement when the venue is federal court.
In state court, the state's evidence rules will also likely trump the professional licensing statutes. In fact, there is plenty of precedent where the State's Rules of Evidence have trumped the professional licensing statutes. So, a licensing argument is a kind of litigation sucker punch or the equivalent of a "Hail Mary" unless the State's legislature has specifically prohibited expert testimony by unlicensed experts in either the professional licensing or the evidence statutes.
Fourth, if there is an important lesson in this case for litigators, it is that the opposition will try every angle to disarm a damaging expert and they may not limit themselves to Daubert style challenges. To thwart the licensing sucker punch or defend against the Hail Mary, litigators should know the arguments and be ready to present the precedent so that lower courts have the right record and can make the right decision.
In criminal defense cases this can be particularly important since finding a "damaging" expert might necessitate someone free of "group think". In this case the prosecution's experts presented identical opinions that were perceived by the Appeals court more as "specialized knowledge" than scientific or technical knowledge. ("Strictly speaking, the testimony was not scientific; rather, the witnesses were law enforcement officers who specialized in fire investigations, and their testimony would more properly be characterized as 'specialized knowledge', rather than 'scientific.'")
In addition, when the license does not bring an accomplished level of specialized knowledge to the subject matter, as is the case with a PI license (a review of PI exam contents reveals questions about weapons handling, evidence handling and surveillance), an expert in name and fact may not even exist within the licensed population.