The Rules Governing
A License is not Required
For Forensic Experts
Recent Legislative Initiatives
A Definition Dilemma
Rules of Statutory Construction
Other Persuasive Precedent
American Bar Weighs-In
US v Johnson
Furmanite America, Inc v T.D. Williamson, Inc.
US v Wilson
Bryant v Farmers Ins. Exch
US v Ganier
Dickerson v Cushman, Inc
Williamson v Harvey Smith Inc.
Ashley v State
Dayoub v Yates-Astro Termite
Pest Control Co.
Nelson v State
Victor Stanley Inc. v
Creative Pipe Inc.
In re Polypropylene Carpet
Davis v State
State v Hix
Adventure Outdoors, Inc. v
Bloomberg, et al
Mauer v Parker Fibernet
North Fulton Medical Center v
Stephenson, et al, Northside
Hospital et al v Stephenson, et al
Kennard v Rosenberg
Private Investigator Licensing Board v Tatalovich
Donegal Mutual Insurance Comany
v White Consolidated Industries
Susan Lukjan v Commonwealth
United States v Commonwealth
Sperry v State of Florida
ex rel The Florida Bar
Thompson v Gordon
Wood v State
Mitchell v Mitchell
Owens v Payless Cashways
Arthur v Bolen
City of Mobile v Hunter
To learn more about electronic discovery or
discuss a specific matter
Gregory L Fordham
(last updated May 2014)
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, outside of a litigation setting, to the general public? If it is the former, such as when a forensic 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.
Interestingly, the PI Board's opinion regarding its dominion over computer forensic experts was published only after its two legislative efforts in 2006 and 2007 to accomplish that same goal had failed. So, all that really seems to be at play here is a licensing Board in search of a membership under "Color of Law".
For the reasons discussed in the following sections, forensic experts in Georgia's state courts are governed by its evidence statutes detailed in Title 24 of the Georgia code and not by the professional licensing statutes detailed in Title 43 of Georgia's code. Moreover the General Assembly has memorialized its intent for forensic experts in Title 24 and only requires licensing of experts in malpractice cases; otherwise, a license is not required. Finally, there is a long and well established line of case precedent where arguments against the testimony of unlicensed experts have failed in Georgia and have even been characterized as "meritless" because the evidence statutes governing the qualification of forensic experts in Georgia do not require a license. Thus, the PI Board's opinion is both contrary to law and exceeds their authority, since administrative agencies like the PI Board can only implement laws passed by Georgia's General Assembly.
With regard to Federal courts in Georgia the absurdity of the PI Board's opinion is even clearer. Like Georgia's rules of evidence, forensic experts are not required to have a license under the Federal Rules of Evidence that apply in Georgia's Federal Courts. As with Georgia courts, there is a long line of case precedent by Federal courts concluding that a license is not required for forensic experts and that a license goes only to credibility anyway. Finally, States or their governing bodies have no authority to issue statutes or regulations that would frustrate federal laws and regulations. So, when the venue is one of Georgia's Federal courts the PI Board simply has no say in the matter.
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. Although the following analysis focuses on Georgia, it also considers similar analysis by other states where evidence statutes have also trumped the occupational licensing statutes. Now clients, counsel and their computer forensic experts can swim confidently and without concern for claims of PI License requirements in Georgia or probably any other state for that matter.
Stated simply, a forensic expert is a witness who may testify in court about scientific, technical or specialized knowledge that is not "familiar in everyday life" or "in possession of the jurors". The requirements for forensic experts are generally described in the relevant evidence statutes and not in the professional occupation statutes governing professional licensing.
In general, witness testimony is either as a fact witness or an expert witness. Fact witnesses have direct knowledge relevant to the issues in a case. An expert witness has scientific, technical or other specialized knowledge and testifies because their expertise 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. A fact witness, on the other hand, must limit their testimony to facts about which they have personal knowledge, although in certain circumstances a fact witnesses may also provide opinion testimony or what is known as a "lay opinion".
Lay opinion, however, is limited to the actual perception of the witness or what might otherwise be helpful to understanding their testimony. It may not be based on scientific, technical or specialized knowledge, however, since that kind of opinion testimony is restricted to expert witnesses in order to avoid situations where experts testify in "lay witness clothing" and potentially avoid being subjected to the special disclosure and evaluation procedures established for experts. (see US v Johnson, 617 F.3d 286, C.A.5, (2010)) When the special procedures for experts have not been followed expert testimony and opinion have not been permitted, although witnesses have still been permitted to testify about factual matters. (see Furmanite America, Inc v T.D. Williamson, Inc., 506 F.Supp.2d 1126, M.D. FL (2007))
The reservation of scientific, technical or specialized knowledge to expert opinion and its exclusion from lay opinion could have significant consequences for computer forensic as well as routine e-discovery cases when the preservation and collection of Electronically Stored Information (ESI) has been done by someone other than the declared "forensic expert". After all, the collection of the data and explanation of the tools and procedures used to avoid altering the original and to ensure accurate collection of the data involves technical issues about write protection, imaging formats, error detection, data verification, data security and chain of custody to name a few. Thus, if the validity of the collection were ever challenged, testimony regarding the accuracy or inaccuracy of the collection would likely only be permitted by way of expert testimony and not through lay opinion by the collector.
What actually constitutes scientific, technical or specialized knowledge that will be presented by an expert witness can be a low bar, since the determining factor is whether or not the information is "familiar in everyday life" and "in possession of the jurors". (see US v Wilson, 408 Fed.Appx. 798, 2010 WL 4608797 (C.A.5 (La.)), (2010), see also, US v Johnson, supra)
If the information is already within the knowledge or capability of the average lay person then it would not qualify as expert testimony. (see Bryant v Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir.2005), “A mathematical calculation well within the ability of anyone with a grade-school education is ... more aptly characterized as a lay opinion”).
It is unlikely that forensic grade imaging is "familiar in everyday life" and "in possession of the jurors". In fact, it is unlikely that forensic grade imaging is even familiar to IT professionals, since the tools, procedures and processes used by IT professionals for imaging are usually very different than those used by forensic experts. The most common differences are write protection, data formats, the actual data collected, and data verification to name a few.
With respect to any actual computer forensic analysis, some might argue that most forensic experts are simply button pushers of the specialized software that they use. As a result, they, themselves, are not providing any expert information and that they are acting more like fact witnesses.
Even if true, for the sake of argument, where this logic has failed is in the interpretation of the data produced by the computer forensic software. The interpretation of the data is often dependent on the expert's knowledge of the forensic software, which is not usually "familiar in everyday life", as well as the expert's knowledge of the evidential media such as its filing system and data storage structures, which are, also, not usually "familiar in everyday life".
While recognizing that today's laymen may be far more computer literate than in times past, courts have 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. (see, US v Ganier, 468 F.3d 920, C.A.6, (2006), "Software programs such as Microsoft Word and Outlook may be as commonly used as home medical thermometers, but the forensic tests Drueck ran are more akin to specialized medical tests run by physicians . . . The average layperson today may be able to interpret the outputs of popular software programs as easily as he or she interprets everyday vernacular, but the interpretation Drueck needed to apply to make sense of the software reports is more similar to the specialized knowledge police officers use to interpret slang and code words used by drug dealers.")
The significance in understanding the difference between fact witnesses and expert witnesses is in determining what statutory provisions apply to the licensing question. In the case of computer forensics, the applicable rules are those governing expert witnesses and for the reasons discussed in the following section, a license is not required except in civil malpractice cases.
In Georgia, the requirements for the admissibility of expert opinion are described in the evidence statutes in Title 24 of Georgia's code. The admissibility of expert opinion in criminal cases is described at OCGA 24-7-707 (previously OCGA 24-9-67) and at OCGA 24-7-702 (previously 24-9-67.1) for civil cases.
In criminal cases under OCGA 24-7-707, "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." Clearly, the admissibility of forensic experts in criminal matters does not require a license, since their opinions "shall always be admissible". In fact, no where is the error of the PI Board's opinion more obvious than in criminal matters.
In civil cases under OCGA 24-7-702 the requirements for expert opinion are more complicated and subject to several requirements. 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,
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 basic statutory requirements for the admissibility of expert testimony. First, in criminal cases the admissibility requirements for expert opinion are not nearly as stringent as in civil cases, since expert opinion in always admissible in criminal cases. Second, the requirements for qualification of experts in civil cases do not include a licensing requirement for admissibility of the expert's testimony.
In 2005 the requirements for experts in civil cases were supplemented with two additional requirements, however. First, paragraph (c) of OCGA 24-7-702 imposed a licensing requirement on experts when testifying about professional negligence and an actual experience requirements when testifying about medical malpractice. With respect to the license, the expert must have been licensed by the state in which he was practicing or teaching at the time the act or omission occurred. With respect to the experience requirement in medical malpractice cases the expert must have had actual experience or practice in the area or specialty in which the opinion is being given.
Second, paragraph (f) of OCGA 24-7-702 was added that 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 were supplemented in 2005 in subsequent paragraphs with a professional licensing requirement in malpractice cases. Licenses are not required in other civil matters, however.
With respect to the Daubert criteria or other Federal Court decisions that were added in 2005 authorized for consideration in paragraph (f), 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:
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). "
Clearly, Georgia's evidence statutes do not require expert witnesses to have a license of any kind except in civil malpractice cases. Nonetheless, the question about whether the professional licensing statutes are relevant to the qualification of experts and admissibility of their testimony has been argued many times over many years.
The Georgia courts have followed similar reasoning as the federal courts when confronted with the question about professional licensing of expert witnesses. (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." See also, Ashley v State, 728 S.E.2d 706, (2012), "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." citing In the Interest of C.W.D., 232 Ga.App. 200, 206–207(3)(a), 501 S.E.2d 232 (1998)).
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 24-7-702(f) mentioned above holding just the opposite. Furthermore, OCGA 24-7-702(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.
The bottomline is that qualification of expert witnesses and the admissibility of their testimony is controlled by the evidence statutes in Title 24 of Georgia's code. The professional licensing statutes in Title 43 of Georgia's code, in general and PI licensing in particular, have no role to play in the qualification or admissibility of forensic experts and their opinions.
When examining the question about whether computer forensic experts should have a PI license, there is no doubt that the Private Investigator licensing statutes are not relevant to the qualification of expert witnesses and admissibility of their opinion. In fact, the lack of legislative intent for a PI licensing requirements for experts is 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. So clearly, at least the PI licensing statutes were not intended to govern expert witnesses.
Nonetheless, 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?
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 gardener 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 24-7-702(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 may have served the PI lobby well but other groups were not so agreeable even though it would have reconciled the differences between the statutory definition and its 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 that requires advanced legal training to resolve. Surely most would agree that such skill and training does not constitute "ordinary intelligence".
While the question of private detective licensing versus expert qualifications would be a case of first impression for Georgia courts, the rules of statutory construction do not support the Board's opinion that professional licensing is required for computer forensic experts.
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 24-7-702, 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?
Licensing advocates have also argued that to allow an unlicensed professional to testify would be allowing a crime to be committed in the courtroom. Federal courts have rejected that exact argument. (see Calvetti v Antcliff, 346 F.Supp.2d 92 (2004) at 112). It has also been considered in State court decisions and rejected. (see Susan Lukjan v. Commonwealth of Kentucky, No. 2010-CA-001509-MR (2012))
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 24-7-702 and 707, 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 states have also wrestled with the question of whether forensic experts are governed by professional licensing boards. While most have involved other professions like engineering, at least five cases have involved private investigators.
The case of Kennard v Rosenberg, 127 Cal.App.2d 340, 273 P.2d 839 (1954) is a California case and one of the oldest dealing with the question of whether expert witnesses are governed by professional licensing boards. Over the years, the case has been used by several states to temper their own overreaching PI Boards. In that case the court made several findings that are useful in resolving the situation in Georgia.
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 24-7-702(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?
In Private Investigator Licensing Board v Tatalovich, 129 Nev 588 (2013) the State Supreme Court of Nevada found that the district court properly concluded that investigative work undertaken for the purpose of developing and giving expert opinion testimony in a Nevada civil court case did not require a Nevada private investigator's license. The Supreme Court also held that, Nev. Rev. Stat. § 648.012's licensing requirements did not apply to experts employed to give an opinion on some aspect(s) of a case where the expert witness performs duties and tasks within his or her field to verify or obtain information necessary to form the basis for the opinion testimony.
This is essentially the same result that would be found in Georgia if a case ever came up for judicial review. After all, the statutory language and requirements of Nevada are very similar to those in Georgia as well as many other states. In reaching its decision, the Nevada Supreme Court considered the statutory language of the state's evidence and professional licensing statutes, applied the statutory construction rules discussed previously, and the decisions in other cases including Kennard v Rosenberg that was discussed previously.
This case is particularly instructive because Tatalovich was a licensed private investigator, although licensed in the state of Arizona. The Nevada licensing board cited Tatalovich for performing various private investigator functions in Nevada while not having a Nevada investigator license. Both the district and the Supreme Courts determined that Tatalovich was serving as an expert witness and the investigative work that he was doing was necessary for the support of his opinion. As such the professional licensing statutes did not apply and the evidentiary statutes did apply and the evidentiary statutes did not require an expert to have a license.
Various PI licensing advocates have argued that experts could testify without a license but actually doing any work required a license. As discussed above in the section on staturory construction rules such an interpretation is an absurdity under various precedents. The Nevada Supreme court thought similarly and rejected the PI Board's argument that Tatalovich needed a license to actually do any work.
In addition to the statutory language along with the various statutory construction precedents that it considered, the courts were highly influenced by the decision in Kennard v Rosenberg that is discussed above. Even though that decision was about 60 years old at the time of the Tatalovich decision, the courts believed it applicable and were persuaded by its reasoning.
Finally, this is one of the few cases actually involving a PI Board. So, for those that are still unpersuaded by all of the various other case decisions finding in favor of experts not needing a license, this one involves a PI licensing board that lost the argument and not just some engineering or medical board. For those that have chosen to reject all of these other case precedents simply because they did not involve a PI Board who thought otherwise, notice that this case gets decided the same way that so many other cases have been decided about whether experts needed to have professional licenses before they could testify in court or do any work necessary to support their opinions.
Besides its persuasiveness as a case involving a PI licensing board, it is also instructive about how misguided and biased the board will be in finding in its favor and how far one might have to go to actually receive a proper decision on the law. In this case, the PI Board kept appealing the unfavorable decision it received until all possibilities for an outcome favorable to their point of view had been exhausted.
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 also 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)
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 focused on the evidence statutes and 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.
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.
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 review 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.
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.
In Wood v State, 891 So.2d 398 (2003), the Criminal Appeals Court in Alabama considered whether a psychologist licensed in another state could testify as an expert in an Alabama criminal case. The case is instructive for two reasons. The first is its analysis of the relevance of the licensing issue to expert witnesses in the state of Alabama. The second is that the decision references and considers the decisions of courts in many other states grappling with the applicability of professional licensing to forensic experts and generally finding that the licensing statutes have no effect on the evidence statutes.
Although the lower court in Wood v State prevented the psychologist from providing expert testimony because she was not licensed in Alabama, the Appeals court determined that lacking other guidance a court should evaluate experts based on the requirements stated in the evidence statute, which focuses on, “the proffered witness' knowledge, skill, experience, training, and/or education rather than any particular licensure by the State.”
In addition, the Criminal Appeals court noted that the Alabama Civil Appeals court had already addressed the expert licensing issue for civil cases in Mitchell v. Mitchell, 830 So.2d 755, 757-59 (Ala.Civ.App.2002) and determined that a license does not prohibit an expert from testifying. (“In Mitchell, the Alabama Court of Civil Appeals decided that, ‘We do not conclude from our reading of § 34-26-1 that the Legislature intended that psychologists be licensed in Alabama as a prerequisite to their giving expert testimony. Rather, we believe the intent of the Legislature in adopting § 34-26-1 and § 34-26-42-punishing those who practice without a license-is to prevent unqualified persons from performing the functions of a psychologist within this State. Nothing in § 34-26-1 would lead one to conclude that testifying is a function of practicing psychology.’”)
With respect to the decisions in other jurisdictions that were considered by the Court in Wood v State, the Court considered decisions from Georgia, Virginia, Alaska, New York, Tennessee, Iowa, Pennsylvania, Louisiana, and Arkansas to name a few. So, this is a good source to learn how the same issue has been decided in many other jurisdictions.
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, 1244 (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 Court reasoned, like many other courts, 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 sound discretion of trial justice. The Court further explained that the expert is there to assist the trier of fact and that persons of great learning should not be barred from courts simply because they had not been licensed. (“If we were to adopt defendants' contention . . . we would in effect preclude expert testimony from, for example, Archimedes himself, the Greek mathematician, physicist, and inventor-credited with the discovery of the principle of the lever-had he come to testify in our courts without first obtaining his license to practice engineering in Rhode Island. Wernher von Braun, the father of our national space program, absent a Rhode Island license, would also fall into that category of ineligibility. We do not believe that our Legislature intended that persons of great learning in the engineering field should be barred from testifying in our courts, and assisting the triers of fact, merely because they have not been licensed here in their respective fields of expertise.”)
The bottom line is that the Wood decision as well as all of the other decisions it considered support the notion that the licensing statutes are distinguishable from the evidence statutes and that licensing of forensic experts is not required unless intended by the Legislature. In Georgia’s case, it is clear that, with its 2005 amendments, the Legislature intended forensic experts to be licensed only in the case of malpractice matters. Consequently, the PI Board opinion is “meritless”.
In Arthur v Bolen, 41 So.3d 745 (2010), the Supreme Court of Alabama also considered whether forensic engineers must be licensed. This case is distinguishable from the previously discussed Wood decision in two respects. First, the Arthur decision involved engineers rather than psychologists like Wood. Second, the licensing statute for engineers in Alabama did contemplate expert testimony unlike psychologists or other professions in Alabama.
Examining the Arthur decision is also instructive because it is the third and final chapter to a story that begins in 1997 when the Alabama Legislature made changes to the engineering licensing statute. Those changes expressly incorporated expert testimony in the definition of the practice of engineering.
The consequences of the changes made in 1997 were not addressed in Arthur but by an earlier case from 2006 where the Alabama Supreme Court was first confronted with the consequence of the Legislature’s changes to the engineering licensing statute in the case of Board of the City of Mobile v Hunter, 956 So.2d 403. In that decision the court concluded that , “ . . . [B]y adopting Act No. 97-683, the Legislature superimposed the licensing requirement contained therein onto Rule 702, Ala. R. Evid.”
Prior to the 1997 changes the courts were allowed wide discretion in determining whether a witness was qualified as an expert on all matters, including engineering matters. After the adoption of the 1997 changes, however, engineering experts had to be a licensed engineer in the State of Alabama.
Apparently, the outcome in Hunter was not what the legislature had intended because in 2007, the next legislative session after the Hunter decision, the Alabama Legislature made further changes to the professional engineering licensing statute that removed expert testimony from the definition of the practice of engineering.
In 2010 the issue was revisited in the case of Arthur v Bolen. In Arthur, the court explained how the professional engineering license statute had been modified and permitted an engineer that was not licensed in Alabama to provide expert testimony when the issue did not involve engineering issues. In Arthur, the issue involved the attachment of a staircase but not the design or engineering of the staircase. As a result, the testimony of an unlicensed engineer was permitted.
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'."
The changes to the engineering licensing statute made by the Alabama Legislature in 2007 are similar to the changes made to the evidence statute by the Georgia Legislature in 2005 that requires licensing of experts in malpractice cases. The lesson to be learned from the Hunter and Arthur decisions is that professional licensing can apply to forensic experts when the Legislature has clearly made licensing a prerequisite to expert qualification whether through the professional licensing statute or the evidence statute. In Georgia, however, the licensing prerequisite appears in the evidence statute but applies only to malpractice cases.
Although the decision by the Court in Hunter about professional licensing of forensic engineers was superseded by the 2007 legislative changes, the earlier Hunter court also considered arguments about the constitutionality of the licensing requirement under both the State and Federal Constitutions. In fact, the Hunters made several arguments to invalidate the professional licensing requirement of forensic engineers including vagueness, the due process clause, the equal protection clause, the interstate commerce clause and separation of powers. Interestingly, the Court refused to invalidate the licensing requirement. So, those wishing to make similar arguments against licensing requirements of forensic experts may find the thinking of Court in Hunter very informative about the hurdles they must clear.
With respect to vagueness, the court said that, “The constitutional standard for vagueness is the practical criterion of fair notice to those to whom the law applies. When the persons affected by the law constitute a select group with a specialized understanding of the subject being regulated, the degree of definiteness required to satisfy due process is measured by the common understanding and knowledge of the group. One to whose conduct the law clearly applies does not have standing to challenge it for vagueness.” Despite how the court ruled in Hunter, the Georgia PI license statute would still seem to have difficulty as discussed earlier in this article.
With respect to equal protection, the court said that, “The Licensure Act does not deny or restrict the Hunters' or any other litigant's access to the courts. As noted above, proffered expert witnesses often are disallowed for a variety of reasons without infringing on a litigant's right to access the courts. Additionally, there are ample licensed engineers in the State of Alabama whose testimony the Hunters may seek to use at trial. Moreover, if the expert of choice is from outside the State of Alabama, he or she merely needs to obtain certification in order to offer his or her testimony. The licensing process set forth by the Licensure Board is not overly burdensome, and we find nothing in this process to indicate that the Licensure Act is discriminatory or arbitrary.” In many cases, professional licensing is simplified once the professional is already licensed in another jurisdiction. That may not be the case with the PI license in Georgia.
With respect to separation of powers the court said, “This Court unquestionably has the authority to adopt those rules necessary to govern the judicial process, at both the trial and appellate levels. However, where the rules adopted by this Court conflict with a subsequent legislative enactment, the legislative enactment takes precedence.”
With respect to interstate commerce the court said, “. . . [T]he Licensure Act does not prohibit out-of-state engineers from testifying in Alabama or prohibit them from serving as forensic experts in this State. The Act merely requires that out-of-state engineers wishing to testify obtain local certification before doing so. The burden of registration is de minimis compared to the benefit obtained by the Licensure Act: the protection of life, health, and property that is obtained by regulating the practice of engineering. That is all that is required. See Pike v. Bruce Church, 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (“Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”). See also 397 U.S. at 144, 90 S.Ct. 844 (recognizing that the field of public safety is unquestionably appropriate for local regulation).”
With respect to due process the court said, “The due process clause is satisfied if the law bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory.” In the Court’s opinion, “A licensing requirement is a rational and reasonable step toward accomplishing the stated goal of the Licensure Act: to safeguard life, health, and property and to promote the public welfare.”
While the PI license statute in Georgia also claims that its purpose is to protect the public the manner in which that is accomplished is highly suspect, at least with respect to computer forensic experts. There is no training computer forensics required for the PI license. In addition, it is not an area that is even tested by the licensing exam. Consequently, in Georgia at least, the statute’s stated purpose simply does not apply to computer forensic experts.
For those considering a constitutional challenge to the PI licensing issue, the Hunter decision can be quite instructive. With respect to the situation in Georgia, the constitutional arguments in Hunter highlight that the real problem in Georgia may not be with the statute but with PI Board opinion that is really nothing more than a membership grab. Administrative agencies in Georgia can only implement legislation passed by the General Assembly. With respect to forensic experts it is clear that in Georgia a license is required only in malpractice cases.
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.
In the final analysis, what is lacking in this case is a statutory provision expressly requiring forensic experts to have a PI license, either in the evidence or professional licensing statutes. Instead, all that really exists is an opinion by the PI Board. While the Board's opinion has been dressed in a letter from the Secretary of State, it is still nothing more than the PI Board's opinion about Georgia's PI licensing requirements for forensic accountants and computer forensics.
In the letter, therefore, the Secretary of State is just parroting the Board's response to an inquiry from a New York state PI about Georgia's PI licensing requirements for forensic accountants and computer forensic practitioners. 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 campaign devised after the PI lobby's legislative efforts to increase its membership had failed in Georgia.
It is also very unclear what the Board is talking about when it claims that computer forensic firms and technicians must be licensed when providing services to the public. Is the Board claiming that computer forensic experts working in a litigation setting need to be licensed or are they simply claiming that when working outside of a litigation setting and providing services to the public that computer forensic firms and technicians need to be licensed?
If the opinion was intended to cover forensic experts working in a litigation setting then the opinion is erroneous. 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, if the Board's 2007 opinion is about licensing computer forensic experts working in a litigation setting then it is beyond their authority and 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 campaign 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.
One's skepticism should not be limited to the various practitioners in the computer forensic expert or e-discovery workspace. Indeed, it should extend to various groups that claim to have researched whether a PI license is required in each of the states. Typically, though, these groups and individuals have looked no further than the PI statutes themselves. Also, they have not even considered the evidence statutes or researched case law regarding forensic expert licensing in those states.
Remarkably this is not just an issue of whether one is actually required to use a PI or not. Indeed, it is actually a much larger issue than that. Typically one expects that having a license demonstrates a certain proficiency in the particular discipline covered by the license. In the case of a PI license there is no proficiency related to computer forensics. In fact, a bartending license has as much to do with computer forensics as a PI license, since computer forensics is neither taught when studying to become a PI or covered in their licensing exams. Instead, the majority of the licensed skills cover traditional police tradecraft like weapons handling and surveillance. There are other subject too like proper funeral procedures and marking but nothing invovling computer forensics is tested and demonstrated in order to receive the license. For this reason, it should be even more obvious that all that is really happening here is an occupational board is abusing its power to claim membership.
Consequently, when individuals or organizations are encountered suggesting that a PI license is required in Georgia, (and probably in any other state) one may need to question their competence and skill sets. Of course, if the case also requires surveillance and weapons handling, a PI could be a good fit.