A question that sometimes arises in the context of expert evidence is whether an expert must be “certified” in order to be an expert witness. There is a frequently espoused view that an expert who has been certified by an organization is better than one who has not been so certified. This quest for proof of external validation has given rise to certification mills that will provide the required certification based upon the submission of a CV, a substantial fee and perhaps (though not always) the completion of a test. The certificate that is received, while rather official looking, is proof of nothing substantive but may impress an uninformed person. This is in juxtaposition to the many robust certification programs that exist and that are true measures of competency.
Some areas of expertise have reasonably defined criteria for entry. Examples include medicine, engineering and forensic psychiatry, each of which requires specific university degrees and professional designations. However, many forensic disciplines do not have clear, universally accepted minimum standards. The court will assess all of the attributes and qualifications of the proposed expert witness in deciding whether an expert witness designation is appropriate. For more on this topic, see the post entitled “Are you Qualified to be an Expert Witness? What is the Test?” The question of certification is worthy of discussion in the expert witness realm. Before discussing whether certification is necessary, it is helpful to discuss the different types of certification that are available.
a) Certification upon payment of a fee
This type of certification is attractive for the person who does not want to do any actual studying, attend classes, be examined on acquired knowledge or have any practical experience. For the requisite substantial fee, a candidate can acquire certification in a number of interesting fields of expertise without having any real qualifications to merit validation. These official looking certificates are granted by impressive sounding organizations.
During a qualification voir dire, attorneys will question the prospective expert witness about the certification and how it was obtained. It is very easy to ferret out the true nature of the certification claimed. A certificate that has been obtained in this manner is of no value in court and gives rise to ethical concerns. Though this certification may fool someone who asks no questions, court is all about questions and the truth will soon be learned.
b) Certification upon attending a course
Some courses offer the student a certificate or “certification” upon taking a course, irrespective of the length of the course or the presence of an examination. When a certificate is granted merely for attending a course, the certificate is simply proof that the holder attended the course. It is not proof that the holder has attained any specified level of knowledge or proficiency. One does not attain any real certification by simply attending a course. Again, these claims of being certified are quickly ferreted out in court with a few simple questions. I have questioned opposing experts in court about claims of being “certified” when the basis of such a claim is solely premised on attendance at a course. No one in court is fooled as to the merits of such certification.
c) Certification upon attending a course and passing an examination
This type of certification is one step up from simple attendance in that there is some evaluation of a student’s acquired knowledge. However, when the course is the kind of course that “Everyone passes!” and the exam is designed to achieve that result, little is achieved. A course that has a legitimate examination is more valuable but any certification obtained from taking one course is of questionable value. Much more is required to achieve a certification that has real merit.
d) Certification upon completing a rigorous program over a lengthy period of time
Some organizations administer reputable, challenging programs with certification as an end result. These programs are very different from earlier examples as these programs have the following features:
- A series of progressively challenging courses taught by qualified instructors.
- All courses have examinations (written, oral and practical, as appropriate) that fairly test students on the course material.
- Prescribed periods of related professional experience are required in addition to course work.
- Submission of work for evaluation.
- Appearance before a certification board for evaluation as to knowledge and competence in the subject matter.
- Payment of either no fee or a nominal fee only.
- Renewal only upon completion of significant additional study and practical experience.
These types of programs result in a certification that is reflective of hard work, the acquisition of significant knowledge, practical application and competency-based evaluation. An example of this kind of certification program is the Certified Forensic Video Analyst program offered by the Law Enforcement and Emergency Services Video Association International Inc. (LEVA) found at www.leva.org. There are many other such examples.
Does the court require certification?
When a judge is deciding whether a proposed witness is sufficiently qualified to be declared an expert witness, all aspects of the witness’s background will be considered. Collectively, the witness must have sufficient knowledge, skill, experience, training and education in order to be of necessary assistance to the trier of fact. The absence or presence of certification is merely one factor to consider. The following forensic video analysis cases illustrate this point.
In State of California v. Hernandez, 2017 WL 2547316 (California Court of Appeal), the trial judge excluded the evidence of a defense video expert on the basis that the proffered evidence was based on a novel scientific technique that was not reliable and therefore impermissible under Kelly and Frye. Further, the expert had no university training in the techniques that he used, had no image analysis certification and his work was not peer reviewed. While the absence of certification was not determinative, it was certainly something the trial judge considered as part of the reasons for excluding the “expert’s” evidence. The Court of Appeal concluded that the trial judge was correct in excluding this evidence. The expert’s theories were new to science and law and it was not established that his theories had gained general acceptance in the relevant scientific community or that they were reliable.
In the Canadian case R. v. Pasqua, 2008 ABQB 124; 2008 CarswellAlta 221 (Alberta Court of Queen’s Bench); appeal allowed 2009 CarswellAlta 974, 2009 ABCA 247 (Alberta Court of Appeal) for reasons not relating to video evidence, when assessing whether the prosecution’s forensic video analyst should be qualified as an expert, the Court commented on the expert’s qualifications at page 4:
[The expert’s] curriculum vitae was marked as Exhibit VD-1. She was examined extensively on it. She has been employed as a Forensic Video Analyst with the [ ] Police Service since 1999, and prior to that time worked as a videotape editor for the [ ] Police Service and, still earlier (and since), in the video replay aspects of broadcast television. Her educational history indicates that she has completed a very substantial number of courses in the field of forensic video analysis being only two to four courses short of the highest certification recognition currently available. She has instructed others on the science and art of forensic video analysis to others in the highest levels of law enforcement in North America. She has been previously qualified as an expert in forensic video analysis by this Court and by the Provincial Court of Alberta. I am satisfied that [the expert] has the training and experience, and thus the expertise to give opinion evidence as a forensic video analyst.
The Court was satisfied with the expert’s qualifications and did not require certification but did note that the expert was close to achieving it.
The absence of certification was discussed in R. v. Kalle, 2007 WL 298566 (Ontario Superior Court of Justice). Part of the evidence for the prosecution was the evidence of a forensic video analyst. He was called to give expert evidence in the comparison and contrast of questioned and known images. The defense objected to the analyst being qualified on the basis that he had no university degree and that he was not a certified forensic video analyst. The Court allowed the analyst to be qualified as an expert witness, noting that he had sufficient training and experience to meet the expert threshold. On the issue of certification, the Court noted that while that is an important factor, it is not determinative.
Conclusion
For most scientific disciplines, the absence or presence of relevant certification is only one of the many factors a court will take into account in determining whether a proposed witness is sufficiently qualified to be declared an expert witness. If an area of expertise has a meaningful certification program, I recommend that anyone working in that area who seeks to become an expert witness pursue such certification. An expert should always be striving to learn more and to achieve more. Resting on one’s laurels is not sufficient. Certification should be the pinnacle of the expert’s qualifications but also not the end of the learning process. An expert is obliged to remain current in his/her field of expertise. The achievement of certification does not supplant to need to be current.