The public hears the words “private investigator” and sees the image of Magnum, P.I., cruising in his Ferrari 308 GTS around the beautiful island of Oahu.  PIs know things that others don’t.  They find things out that others can’t.  They are glamorous and cool, and they get the evidence that frees innocent people.  Jim Rockford was not as cool, but lived in a trailer in Malibu.  As if they had trailers in Malibu. 

For criminal defense lawyers, private investigators are another matter entirely.  While they serve a critical need in investigations, most are former cops who hang out a shingle after they take their pension.  They use databases more than trench coats, and often have a hard time getting a decent statement out of the witness because, well, they are still cops in the heads.  They are expensive and produce relatively little useful evidence.  More often than not, they come up empty.

There are very expensive corporate-type PI firms that are used by corporations to do things like background checking and locating.  They use the same databases as the others, and these databases are available to lawyers as well if you want to pay for them, but they charge multiples of what small and solo PIs charge.   They provide no more information, but put it into very nice covers that make you feel that they’re more professional.  They aren’t.  They just don’t sound like cops when you speak with them, which is reassuring but otherwise meaningless. 

I’ve used some PIs who have access to information that they can’t possibly have.  Legally.  These guys produce some very cool stuff.  Unfortunately, these guys are not readily available to lawyers, and they are totally unavailable to the general public.  I would tell you where to find them, but then they would have to kill me.  And you too.  And they could find you.  They are that good.

Defendants are always asking for private investigators.  When they find out what it costs to get extremely modest returns, they usually demur.  Clients expect magic.  They get papers.  Often papers that are little better than what can be found in a well-framed Google search.

But there is a niche within the private investigator function that combines the skills of an true expert with the investigative aspect of the PI.  This niche is becoming increasingly critical in criminal defense due to the fact that technology has become a mother-lode of evidence for the prosecution.  They may not drink black coffee all night while sitting in the darkened front seat of a non-descript sedan, but they have the competency to get the evidence the defense needs.  This is the digital/computer forensics expert.

Larry Daniel from down in Raleigh has started a blog called Ex Forensis.  Some of his posts are quite technical, well over the head of simple country lawyer like me.  But then, that’s why we need a digital forensics expert like Larry to do his voodoo.  One of the drawbacks for Larry is that he won’t post about his cases for purpose of confidentiality, which means that he keeps the really good stories to himself and is resigned to posting hypos to explain what he does and what computer forensics offers.  Still, if you haven’t considered having a computer forensics expert on your side in a kiddie porn or cellphone case, while the government’s got what appears to be an overwhelming and indisputable case against the defendant, you’re walking in blind.

Larry bemoans the changing status of the computer forensics guy from basic expert to private investigator, meaning that states are now requiring forensics experts to be licensed like PIs.  He notes that the licensing requirements may well work against the forensics expert, since they are geared toward the trench coat gang.  On the other hand, it has the strange result in qualifying a forensics expert to do surveillance and the ex-cop to pretend to be a forensics expert.

So the catch 22 is, if I can qualify for a PI license based on my computer forensics experience, the board is potentially unleashing someone with no PI type experience on the public to perform services for which I know I am not qualified.

If a private investigator can perform forensics without any training or experience, then the licensing board is potentially unleashing an equally unqualified person on the public to perform scientific analysis of computer data.

While both the PI and the computer forensics expert are both “investigators” in the broader meaning of the word, don’t let this melding of two completely different skillsets confuse you.  Only the government can get away with putting totally unqualified witnesses on the stand to provide absolutely nonsensical “expert” testimony.  You will be required to have an actual expert. 

Most regular PIs I know will happily lie through their teeth about their ability to perform expert services in forensics, even thought they don’t have the slightest clue what they’re doing.  Business is tough for them too, and they won’t pass up a fee.

Larry proposes that computer forensics experts be separately licensed based upon qualifying examinations, which seems to be a sound position.  Of course, the problem is that there are many areas of technological expertise, far more than the government has time (or inclination) to address individually.  While there are professional associations that can offer some direction, there are those who will join that lack the requisite expertise and still have the imprimatur of being a member of a professional association.

So while the government may want to provide some comfort via licensing, and there are similarities in the services provided, beware the difference between expertise in a specific technical field and some ex-cops with a DBT account.  They are not fungible, and when you are in need of some serious digital forensics investigation, make sure you understand what’s available out there and that you’ve retained someone who really has the goods. 

When you need someone to do regular PI work, you’re on your own.