Recently, a New York–based private investigator reached out to me about conducting surveillance in a neighboring state in which he was not licensed.

So, here was the question (edited for clarity):

I am licensed in New York state as a private investigator. If there is a case that is “venued” in New York state, and the person moves to any other state, am I allowed to conduct surveillance in the other state, as long as the case is initiated in New York state?

The person was injured in New York state and there is ongoing litigation in New York state. The person recently moved to New Jersey. An attorney who I am working with is questioning the legality of initiating a surveillance in New Jersey with someone who is not licensed in New Jersey.

I have some top attorney firms that send me out of state for work, and they all say it’s legal. I can’t find a statute that says that I can work in New Jersey.

I don’t do any surveillance work, and I don’t pretend to be qualified enough to answer legal questions. But doing work in other states does come up quite a bit with fellow investigators, and my answer is pretty clear-cut: My understanding is that if you started a surveillance in New York (where the case originated) and the person drove into New Jersey, you are always OK.

When I say OK, I mean that this was not a typical situation; the person happened to drive into a neighboring state. You don’t need to stop doing surveillance because you are not licensed in that state. I don’t think any court of law is going to throw out the evidence because you happened to be driving through a state in which you were not licensed. Likewise, you will be hard-pressed to find any licensing body sanctioning someone for temporarily traveling through their state.

But if you are starting a surveillance in New Jersey, you need to be licensed in New Jersey—not necessarily where the case was filed or venued.

Each state’s licensing board wants to make sure that everyone who is operating in the state has a license and acts within the bounds of the law. It also helps protect the local private investigators from out-of-state competition.

What’s the risk if you do operate in another state?

To be perfectly frank, if you are operating in another state without a license, there is also not a whole lot of risk involved. Like I said, I have never heard of a licensing body sanctioning a firm for operating out of state. Also, there is very little enforcement going on within state regulatory bodies.

For God’s sake, absolutely nothing has been done to Black Cube, which operated in New York and all over the country on behalf of Harvey Weinstein with some extraordinarily shady and illegal tactics. And what about, in fact, the licensed private investigator who was doing the shady/illegal stuff for Black Cube? He still has an ACTIVE private investigator license and has not been sanctioned, according to a few of my sources.

BUT (there is a big BUT there), if whatever you are collecting may end up in court and may end up getting thrown out because it would not be collected by a licensed professional, you might want to think twice.

I realize that this answer may be different depending on which part of the country you are living in. For example, some states have reciprocity laws, in which you can enter a neighboring state as long as it’s temporary. As far as I am aware, there is no reciprocity agreement between New York and New Jersey.

Because I was not completely satisfied with my own answer, I reached out to a few New York–licensed private investigators, who also happen to be attorneys, who added some excellent points.

Most legal practitioners know little about private investigator licensing

In the original question, the private investigator pointed out that he works with some top attorney firms that have sent the investigator out of state and that employ lawyers who say it is legal. On that point, your typical legal practitioner knows little about private investigator licensing. David Boies of Boies Schiller Flexner, who at the time was one of the top lawyers in the country, hired the firm Black Cube for Harvey Weinstein. Not only was Black Cube doing all kinds of unethical things, but it was sending operatives all around the United States, to places where they do not have offices, let alone any licensing. 

As an attorney, if it was a case that could potentially go forward in either state, I would also want to be sure I had someone licensed in each state. The risk seems pretty minimal in most cases, but it really only takes one bad situation for it to come back and bite you in the a$$.

State statutes will probably not be helpful

State statutes relating to private investigator licensing typically will have some language that requires you to have a private investigator license if you are conducting/engaging in investigative services for a fee in that particular state. So, in this case, if you are in the act of conducting or engaging in investigative services for a fee in that particular state, you need to be licensed. I don’t think you will find a specific state statute that says, “You can’t come into New Jersey if you are licensed in New York.”

Case law

There is, perhaps, some case law that will support crossing state lines, but I am not aware of any. If anyone in the investigative community knows of any, please let me know.

What if you need to cross state lines?

First, I would check the local state reciprocity agreements, as well as local licensing. For example, North Carolina has limited reciprocal agreements with seven states and California has reciprocity agreements with five states, but in California you have to fill out a form and notify the state. New York, as far as I know, does not have any reciprocity agreements.

Many investigative firms will hire a local investigator in the local jurisdiction, and have one of the investigators from out of state tag along. This offers protection with regard to local licensing laws. This would typically be in a situation in which you needed to conduct interviews, especially in cases with some complexity, and for which getting a local investigator up-to-speed would be difficult. Or cases in which the investigator from out-of-state has some institutional knowledge of a case that might be hard to replicate.

Having said all of this, I don’t think that crossing state lines in every situation requires you to jump through hoops and to get a license. For example, if I am going to pick up some court records in Connecticut, doing some historical news media research in a library in New Jersey or dropping off a request to a police station in Pennsylvania, I am all set; I personally would not be worried about being licensed in that state in any of these scenarios.

But, if at any point in your out-of-state work you are considering doing interviews, surveillance, witness canvassing, scene photographs, “door knocks,” or any other activities that would be considered (or even may be considered) under the private investigator law (I am thinking of things like computer forensics) in a state in which you are not licensed, especially for a case that may end up in a court of law, I would be sure to consult with an attorney.

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I have had an ongoing debate about pretexting with a fellow private investigator over the past several years.

This colleague loathes the word “pretexting,” in part because of the definition of the term.

Pretexting is defined by the Federal Trade Commission as “the practice of getting personal information under false pretenses.” Sounds pretty ominous, right? Expanding on the definition, “personal information” is described as bank and credit card account numbers, information in a credit report, bank account and investment portfolio information, and Social Security numbers.

In much simpler terms, pretexting means representing yourself as one person in order to obtain private information about another person.

There are a few types of pretexting that are completely off-limits and punishable by law:

The Telephone Records and Privacy Protection Act of 2006 made it a federal offense to utilize pretexting to buy, sell, or obtain phone records.

Pretexting for financial records was specifically outlawed in 1999 under the Gramm-Leach-Bliley Act, which made it illegal to solicit others to obtain financial information via pretext.

In addition, while there is no pretexting provision in the law, HIPAA privacy laws protect an individual’s medical records unless consent is provided by the patient.

Although not exactly considered pretexting in the classic sense, there are also a few other forms of pretexting, better described as “impersonation,” that are also punishable by law:

Representing yourself as a police officer or law enforcement officer in any capacity or giving the impression that you are a police officer or law enforcement officer is illegal.

Falsely pretending to be an officer or employer acting under the authority of the United States or any U.S. department or agency is illegal.

Some examples of completely illegal activity are contacting a doctor’s office and falsely pretending to be a patient in order to obtain medical records, inquiring at a telephone company to obtain phone records of another individual, and asking a bank or credit card company for the statements of another individual.

But if you consider the definition once again as “the practice of getting personal information under false pretenses,” pretexting includes a number of practices that private investigators utilize on an almost daily basis. While most people apply the definition of pretexting to some sort of scam, private investigators typically use pretexts to do their jobs.

For example, surveillance investigators may contact an individual’s residence to determine whether the person is home. The surveillance investigator may call the residence and ask for the target person, pretending to be a friend, colleague, or business associate.

They may also call saying they have a delivery for John Smith and want to know when Mr. Smith will be home to sign for the package. An investigator who is looking for someone may call a cell phone to confirm that the number is in fact that of the person sought. In each case, the investigator, when asked, “Who is this?,” is certainly not going to say, “private investigator Danny Jones.” More likely than not, the investigator will use a fabricated name.

So, in these examples, is this pretexting? Technically, yes, because the investigator is using false pretenses to elicit information.

Is it illegal?

In my view, and in the view of many investigators, obtaining “sensitive information” under some form of pretext is troubling and concerning. I’m not a legal expert, but I think you will be hard-pressed to find anyone who has ever been charged for conducting an innocuous investigation such as the ones described immediately above.

There is a gray line here, however. There are lots of techniques used by investigators that are completely unethical but may not be technically illegal; for example, if I called pretending to be a former employee of a company and obtained salary information of the former employee, or if I impersonated a hotel guest to get a copy of a bill or posed as an airline passenger to confirm a flight.

Ethically, I wouldn’t touch those with a 10-foot pole; legally speaking, I am not sure if this crosses the line.

Also, I don’t know an investigator out there who doesn’t have a fake social media profile. That certainly violates terms of service of the social media firm, but the reason investigators typically use a fake profile is to avoid getting caught snooping around. You would cross the line if you were “friending” a target to get nonpublic information or engaging with them to get access to information you wouldn’t otherwise be able to get.

A few years ago, the investigative firm Ergo used a fake-journalist ruse to dig up dirt on an adversary of Uber. Ergo was ripped to shreds by a federal judge overseeing the case, who highlighted a litany of irresponsible and “arguably criminal” acts; however, it doesn’t appear that the company was criminally charged.

Reckless? Careless? Unethical? For sure, but not illegal.

So is pretexting illegal? In certain cases, the answer is absolutely yes. But between that illegal area and the not-so-illegal area, there is a cavernous gray area.

So, where do you draw the line in pretexting?

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Last week, the San Francisco 49ers played the Cleveland Browns in Monday Night Football. It was a pretty unremarkable game (the 49ers won 31 to 3).

But what happened after the game was more interesting.

Richard Sherman, the outspoken cornerback of the 49ers, called out the Browns’ controversial quarterback for his “bush league” act before the game. In a postgame interview, Sherman said that Mayfield snubbed him during Monday’s pregame handshake.

“What’s amazing—and annoying—was him not shaking hands at the beginning,” Sherman said Monday night, according to NFL.com. “That’s some college s—. It’s ridiculous. We’re all trying to get psyched up, but shaking hands with your opponent—that’s NFL etiquette. And when you pull bush league stuff, that’s disrespectful to the game. And believe me, that’s gonna get us fired up.”

The snub obviously fueled Sherman, who had an interception, and the 49ers defense in holding the Browns to three points.

But the next day, video surfaced that showed Mayfield slapping hands with Sherman before the coin toss, then running to his sideline after the referee picked up the coin.

The following day, Sherman said he would apologize, saying that “sometimes you remember things a little differently than it happened” but “obviously, it still motivated me the same way.”

I don’t think Sherman was lying when he originally recounted the snub. After all, millions of people watch Monday Night Football, and cameras would have been sure to catch the snub. And it was only a few hours after the incident, so time was certainly not a factor for his memory to have gone sideways.

But Sherman clearly had a bias and an agenda (to get motivated) and misremembered the story to get himself fired up.

That’s totally cool, but it’s just a good reminder that you can’t always rely on one person’s word.

Especially when it can be confirmed or denied through other sources.

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This has been a bad couple of weeks for private investigators.

First, there was the story of Credit Suisse, which hired private investigators to follow a former top executive whom the bank thought was trying to poach employees and clients. But the former executive got into a confrontation with the investigator hired to tail him. The investigator is facing a criminal probe, and the consultant who helped Credit Suisse hire the investigators to trail the executive committed suicide just this week. Now Credit Suisse is reeling from the controversy, saying that the surveillance on the former executive was “wrong,” which ultimately led to the resignation of the COO, who authorized the surveillance.

ext, there was the story of Neil Gerrard, a partner from the white-collar law firm Dechert, who was suing an investigative firm for spying on him after they placed a camouflaged camera on his property to try to gain access to a private Caribbean island where he was vacationing. Operatives were questioned by police after claiming that they were the nephews of the Gerrards. Police found a “large amount of electronic equipment, including a camera adjusted for night vision use” on one operative, who was denied entry to the island; and at least two operatives have been interviewed by British Police.

The investigative firm doing the work, Diligence of London, was allegedly doing work for ENRC, which Gerrard formerly represented. ENRC is being investigated by the UK Serious Fraud Office amid allegations of fraud, bribery and corruption, and is currently involved in litigation against Dechert and Gerrard, accusing them of breach of contract and overcharging for Dechert’s services.

Then yesterday, the Wall Street Journal posted a story about Greg Lindberg, who is facing criminal charges in what has been described as potentially “one of the biggest U.S. life-insurance insolvencies in recent decades.” Lindberg reportedly hired dozens of surveillance operatives to spy on “actual and prospective romantic partners, assembling dossiers on the way.” According to the Wall Street Journal, “Mr. Lindberg paid for dozens of surveillance operatives to tail the women up to 24 hours a day, taking surreptitious photos and sometimes putting GPS trackers on their vehicles.”

The firm that was doing the work? Apex International, a North Carolina firm that happened to be owned by Lindberg. (Funny how you can’t even find a website for the company.) It is interesting to note that GPS trackers are illegal in Apex’s home state of North Carolina without the permission of the owner of the vehicle.

Lindberg also spied on one woman by having someone secretly enroll in the school she attended, and tracked another woman by having one of his agents rent an apartment across the hall from where she lived to keep tabs on her. Investigators were told that the woman had “agreed to the surveillance,” but suspected that it was not true when one investigator said, “I realized what I was doing was horrible” when “I was putting fear in a woman in a certain situation.”

What can investigators and businesses learn from this?

Think Before You Hire an Investigator

Most of the casework that we do never gets to court, but every time we need to make an ethical or moral decision that may cross the proverbial gray line, I ask myself, “What would a jury of reasonable people think?” If there is even a hint of unscrupulous behavior, I won’t do it. It’s not worth risking my reputation, license or standing in the investigative community, no matter how much money it will make us.

If you are conducting corporate “espionage,” you should be asking, “How is this going to look when I read about it in the Wall Street Journal?”

If you think that placing a surveillance camera on someone’s private property to monitor the comings of goings might not look so good, don’t do it.

If you think that the CEO of a billion-dollar company using company funds to create dossiers on his prospective romantic partners might not result in favorable media coverage, don’t do it.

Or if you think surveillance of a former executive that could result in a confrontation might lead to weeks of bad public relations, don’t do it.

It might seem like overkill, but it might also save you from some serious embarrassment, like ending up on the front page of the Wall Street Journal.

The More Sensitive, the More Caution

If we get near that proverbial gray area, we typically won’t do the work. But if there is a really touchy case, which is either a sensitive topic (e.g., sexual harassment), politically motivated or dealing with powerful people, we advise you to proceed with extreme caution.

That means following the letter of the law to a T; using the most experienced, trustworthy investigators that you can find; and taking riskier steps only when you have exhausted every other possibility.

If you want to do surveillance on a former executive because you think he might be violating the terms of your agreement, go for it. But don’t skimp by hiring only a few operatives, who might get caught. And at the first sign of any issue, the surveillance should be broken off completely.

If you are going to do surveillance on a partner of a white-collar law firm, it’s probably not a good idea to trespass on private property.

On a personal note, I was personally surveilled by another investigative firm recently. These guys were all over the local Facebook page of my local community, surveilling the wrong house until they found me. And when they finally did find me, they had only one guy trying to follow me.

Spoiler alert! That didn’t end very well for them.

A Little KYC (Know Your Customer) Goes a Long Way

Businesses need to know who they are getting involved with.

Investigo GmbH, who carried out the surveillance for Credit Suisse, has Google reviews ranging from “Very unfriendly staff” and “Only fixated on money” to “Bad experience, not to be recommended, rude and stubborn,” resulting in 1.4 out of five stars.

All that took was a five-second Google search to learn.

Likewise, as an investigator, you need to know who you are working for, their motives, and whether or not they are going to push you into some unscrupulous behavior.

Would I track down an address for an attorney to serve a lawsuit? Absolutely.

But tracking down the lover of my client’s ex-husband in order to “deliver some boxes she left behind”? Nope.

Who You Hire Is a Reflection of You

The three cases I described above have one thing in common: an element of surveillance or on-the-ground work.

It’s clear that, at least in a few of these cases, the investigators were either breaking the law (e.g., going onto private property, attaching GPS trackers to unsuspecting vehicles) or at the very least skirting it in a really gray ethical area. 

It’s clear that there will be a lot of questioning of the judgment of those who hired the investigators.

Rightfully so.

Another Notch in the Belt for Open Source Intelligence

Over the past few years, there has been an explosion of information available to investigators through open source intelligence (OSINT) and public records. With the right training and access, there are millions of points of data available at an investigator’s fingertips, sources ranging from social media, historical domains and deep web research to historic newspapers, litigation filings and credit header information. There is an entire cottage industry of people who only do covert research, which, if done properly, is nearly impossible to detect.

At the end of the day it is hard to dispute the value of making in-person inquiries with friends, families, neighbors and colleagues, former business partners, or local law enforcement. Or doing surveillance.

But those inquiries have risks, namely that it may get back to the target of the investigation. There are, of course, times when only surveillance, interviews and on-the-ground work can get the answers you are looking for.

But you have to ask yourself if it’s worth the risk if someone finds out?

I guess you will have to ask Credit Suisse, Greg Lindberg and ENRC.

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“Can you find connections between people and organizations,” is a frequent request in this business. Perhaps it is a corporate officer who is not acting independently. Maybe lucrative contracts are being funneled to a friend or relative. Or certain business dealings seem to favor one organization over another. It may be that you just want to figure out the connection to two people.

Under the surface of a seemingly benign relationship, there are a myriad of possible improper dealings or networks that could contribute to the likelihood of fraud, corruption or other shady activity.

Develop a Profile

Think about your own connections and network. How did you meet the various people in your own life?

There are your relatives and you may have friends from the places where you spent your childhood. You make friends and build your professional and social networks first at school, then through your chosen career field. As we age, we tend to also make contacts through our spouse’s family and networks, as well the families of other kids in our children’s networks.

The best way to uncover connections is to develop an in-depth profile of each of the relevant individuals or companies you suspect may be linked. Look at relatives, friends, social contacts, and professional connections. We have previously discussed how to find current and former employees of companies, but an examination of litigation, critical contracts, customer relationships, and professional organization activity may also provide telling details of corporate relationships.

Sources of Information

Common Institutions

When you think of common institutions, it is common to think about people attending the same college or university. You should also ask whether they attended any other type of training at the same time (e.g. pilot training, professional certification course, internship, medical training, etc.). Federal and State prison records may reveal that they were incarcerated together.

Professional Organizations

Depending on the individuals’ profession, he may belong to a national or local professional group. Look at each individual’s spouse to determine whether there is any overlap in his or her profession, employers, or organization memberships.

Corporate and Regulatory Filings

Corporate records other regulatory filings (e.g. SEC, FINRA, NFA) may show overlap between two individuals or companies. Depending upon the industry, you may also look to other federal and state databases (OSHA actions, federal contractor databases, state attorney general sites, etc.).

Social Media

Social media sites are commonly used to see which individuals are directly linked. It isn’t difficult to look at someone’s “Friends” on Facebook or contacts on LinkedIn. Relative relationships may be easily identified through Facebook’s labeling options.

Social media posts can also provide additional information about individuals’ interests, professional organization memberships, and their education and employment histories. Did he check-in at his fraternity brothers at their alma mater’s homecoming game? Are there photos of her at the charity gala? Perhaps he has posted details of his marathon training with the local running club.

Online and Print Media

Obituaries, marriage announcements, and real estate transfer reports may contain information about relatives and spouses, but also friends. In one case, we were able to support a client’s suspicion of a relationship between two individuals through a decades-old wedding announcement that identified one subject as an usher in the other subject’s wedding.

Local and national media, as well as online blogs, may also report on large deals between companies, employment activities, litigation, and other issues regarding the corporation in question.

Hobbies and Interests

Do you have information that both subjects enjoy similar hobbies? Check out licenses, property ownership records, and UCC filings too. Perhaps they are both pilots or own boat slips in the same marina. Maybe there is a local club or sports team to which they both belong. Do they consistently run the same road races? Perhaps they are training partners or part of a local training group. Sites such as Athlinks.com consolidate race results for a variety of sports.

Philanthropy and Political Donations

Are the two individuals active in the same party or do they contribute to the same campaigns? Check out contribution records on the FEC.gov website. Could they both contribute to the same charities or provide pro bono services at the same organization? Look to annual reports of donors or lists and photos of gala attendees.

Neighborhood and Children

Look to address histories to determine whether the subjects have lived in the same neighborhood or building at any point throughout their lives. You may also be able to determine whether the subjects have children who are similar in age and either attend the same school or participate in similar extracurricular activities.

Property Records

A closer review of address history could help to identify friends and relatives who have also lived at the same location as the subject. However, a closer inspection of property records – specifically the mortgage details and other buyers/sellers in transactions – may provide even further insight into corporate or personal relationships.

Realistic Expectations

There are so many sources to mine for information about connections. However, most of us can say that we have a close friend or professional contact who we met under a strange circumstance that would render it nearly impossible for someone to independently determine the basis of the relationship.

When setting out to identify connections between people or organizations, it is important to have realistic expectations. Despite your best efforts and an exhaustive search, there just may not be an obvious link between your two parties.

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There are many things to consider when a law firm is hiring a private investigator.

Below is a guide to some best practices.

Licensed and Insured

There has been a troubling trend of unlicensed private investigators, so the first thing that a law firm should do is confirm licensing status with the local regulatory body.

In the United States, 43 of the 50 states have statewide licensing requirements for private investigators/private detectives.

As of June 2011, there are no licensing requirements in Colorado, Idaho, Mississippi, South Dakota or Wyoming; Alabama and Alaska have requirements in certain cities.

Prior to commencing an assignment, the law firm should request proof of liability insurance to protect the firm in case something does go wrong.

Communicate Your Needs

It is critical to communicate to the private investigator as much information as possible from the outset, no matter how minute the details may be.

It is also important for the law firm to understand what information is potentially attainable and what may not be, within the confines of the law.

Subject Matter Expertise

The private investigator should have subject matter expertise relating to the situation at hand.

If the investigation calls for surveillance, finding a witnessintelligence gatheringdue diligence investigationcomprehensive background investigationasset investigation or an expert witness background investigation, a private investigator should be able to provide the law firm with examples of previous work done on similar matters.

Establish a Budget and Deliverables

The private investigator should prepare a descriptive agenda of your objectives and what efforts the investigative firm will make to accomplish those goals.

The investigation should be conducted in stages, with deliverables provided upon completion of each stage, so the law firm can have a measuring stick to gauge the progress of the assignment.

Engagement Letter

Included in the engagement letter should be an indemnity agreement in case the private investigator engages in professional misconduct or violates the law.

Additionally, the scope of the work, the agreed-upon budget, any agreed-upon retainer agreement and a termination clause should be included in the engagement letter.

Documentation of the parameters in an engagement letter can alleviate future disputes over objectives, timing and fees.

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In high stakes litigation, an expert witness background investigation may uncover information that could potentially discredit the expert witness and ultimately lead to a favorable outcome.

Pretrial discovery provided you with the opposing expert’s CV and details about his compensation for testimony. You may have Googled the expert witness or pulled up a few of his articles on Google Scholar. But what does this really tell you about your adversary’s expert? What do you truly know about your own expert, for that matter?

It’s easy for anyone to do some basic searches and get a “snapshot” of the expert that will be on the stand. It’s even easier to rely on the information provided by the expert. But what are you missing? Unless you find a glaring discrepancy or a front page scandal, basic research won’t provide you with the ammunition to discredit or disqualify your adversary’s expert.

In a comprehensive expert witness background investigation, an experienced investigator can dig deeper into the background of an opposing expert witness to help you on cross examination. In high stakes litigation, you should assume that your opponent is doing the same thing – what will they find? Investigating your own expert may prevent potential problems at trial and you will be better able to anticipate the other side’s attack.

Below are some areas that could be uncovered in a expert witness background investigation that could potentially discredit the witness:

The CV

Verifying the veracity of the information in the expert witness’s CV is a good, basic starting point. It is critical to know that the information contained in the CV is complete and accurate.  In addition to verifying “directory information” of former affiliations, organizations and educational institutions, investigators can also speak with former colleagues or associates, learning additional details about the expert.

Affiliations and Conflicts of Interest

In the past, attorneys have tried to obtain information about experts’ affiliations and monetary arrangements through discovery. As judges begin to limit the scope of discovery motions this tool may not always yield useful information. Having an investigator dig into an expert’s affiliations (e.g., organizations, educational institutions, employers, business partners etc.) may reveal conflicts of interests or other information useful for discrediting the witness.

Prior Statements

Pulling testimony in cases is time consuming, and frequently requires personnel to go to the court in question, but it can be a goldmine of information. Contradictory testimony in prior cases is, of course, a fantastic way to discredit a witness. Attorneys should also consider using other statements by the expert made in the media, scholarly articles, and other sources.

Past Acts

In the past there have been notable examples of discredited experts throughout the United States and the world. Prior criminal records and a history of work issues have come to light both in the United Kingdom and in the San Francisco forensic crime lab. In Florida, psychologist George Rekers’ testimony in numerous parental rights cases, was called into question.

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