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Blood Tests in Paternity Litigation Assembly Committee on Judiciary

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Blood Tests in Paternity Litigation Assembly Committee on Judiciary Golden Gate University School of Law GGU Law Digital Commons California Assembly California Documents 9-22-1980 Blood Tests in Paternity Litigation Assembly Committee on Judiciary Follow this and additional works at: http://digitalcommons.law.ggu.edu/caldocs_assembly Part of the Family Law Commons, and the Legislation Commons Recommended Citation Assembly Committee on Judiciary, "Blood Tests in Paternity Litigation" (1980). California Assembly. Paper 220. http://digitalcommons.law.ggu.edu/caldocs_assembly/220 This Hearing is brought to you for free and open access by the California Documents at GGU Law Digital Commons. It has been accepted for inclusion in California Assembly by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. TABLE OF CONTENTS Testimony taken on Monday, September 22, 1980 WITNESSES PAGE NO. ASSEMBLYMAN DAVE STIRLING l Author of AB 1981 ROBERT W. PETERSON, J. D. 2 Professor of Law, University of Santa Clara JEFFREY w. MORRIS, Ph.D. I M.D. 14 Director, Paternity Testing Laboratory, l'~emorial Hospital Medical Center of Long Beach BRIAN \A7RAXALL 28 Executive Director, Serological Research Institute BYRON HYHRE, M.D. , Ph.D. 33 Professor of Pathology, School of Medicine, University of California at Los Angeles DOMENICO BERNOCO, D.V.M. 37 Associate Professor of Immunogenetics, University of California at Davis, Associate Research Immu­ nologist, University of California at Los Angeles cTUDY BOND 43 Supervisor of Paternity Evaluation, Tissue Typing Laboratory, Department of Surgerv, University of California at Los Angeles MAX RAY MICKEY, Ph.D. 45 Biostatistician, School of Medicine, University of California at Los Angeles MICHAEL E. BARBER 47 Supervising Deputy District Attorney, Office of the District Attorney, County of Sacramento, Representing the Family Support Council of the California District Attorneys Association REMOVE FROM I RARY Testimony taken on Monday, September 22, 1980 (Continued) WITNESSES PAGE NO. HIDEO NAKANO 50 Deputy Public Defender, Office of the Public Defender, County of Los Angeles, Representing the California Public Defenders Association J.A.MES R. TUCKER 53 Representing the American Civil Liberties Union DAWN TILMAN 57 Staff Attorney, San Fernando Valley Neighborhood Legal Services JOHN E. WOLFGRAM 60 Private Attorney GERALD SILVER 69 Representing the United Fathers Organization JAMES A. COOK 72 Representing the United Fathers Organization LEE M. JACOBSON 76 Co-author of "Paternity Testing with the Human Leukocyte Antigen System: A Medicolegal Breakthrough" 20 Santa Clara Law Review 511 (1980) ii APPEND PAGE NO. A Letter fessor Hobert W. Peterson 80 Va n 84 B Wraxall 87 c . Domenico Bernoco 88 D Letter from J. Lee 90 Patern the Human Leukocyte 92 Medicolegal Breakthrough" 511 (1980) PAGE NO. 113 116 st 123 Laboratories 4 Tests to Determine 1 4 e Code Section 890 et 167 and Bill Analysis 69 , Office of ld 75 of Health, iii Science & Industry - Muses Room , Exposition Park ifornia 2, 1980 We're ready to commence. Let me We have Consultant Lett Santa Clara County; Chief and As is the admissabil blood cases. We'll be cons whe- the various blood hearing will cons look at blood te should be s the legal lity that a outset, I wish to Thank you, Mr. '-'VHLltt.Lttee who to thank who this hearing. sses the purpos of the Th new that iary you. the she did have Mr. ld up the jury the c say, father, Mr. 'X'?" Pretty much that trat a prima facie e of decades has developed various types of blood testing which would make it possi­ ble to demonstrate to a jury or to the court greater scientific accur­ acy in making some determination as to who is in fact the father. The purpose of this bill, and I would like this to be very clear -- this is not a man's issue, or a woman's issue. This is an issue of truth. We're trying to find out who is the father of the child The child certainly has a right to know that. I think society has a right to know that because the possibility of improving the ability of producing evidence in a paternity case has many ramifications, not the least of which is the reduction in the number of trials perhaps that this kind of evidence could assist in. It would also help, I believe, in the reduction perhaps of those who find it necessary to go to the AFDC program because if we knew who the father was it would perhaps be a responsibility better borne by that individual. There are many experts today -- I don't want to take anymore time. I would like to introduce Robert W. Peterson, Doctor of Jurisprudence, Professor of Law at the University of Santa Clara, as the first witness. PROFESSOR ROBERT W. PETERSON: Thank you very much. Mr. Chairman, Assemblyman Stirling, let me thank you for this opportunity to address this particular bill. I would like first briefly to tell you just how we got to where we are legally with respect to blood test evidence. I think you know most of that already. I would like to talk about some doubts I have about the bill in its present and make some suggestions as to how it might be amended so that jur will not be misled by this evidence. The current law really had its genesis in the unfortunate case of Berry v. Chaplin [74 Cal. App. 2d 652 (1946)],where Charl Chaplin found that he was the father of a child whose blood test showed that he could not have fathered. Following that case, in 1952 the Commissioners on Uniform Laws promulgated the Uniform Act on B Tests to Determine Paternity. California adopted that act in 1953, and it's found in Evidence Code Sections 890 to 897. The main pro­ visions of that act are three. First, if a father is excluded as father, then that is conclusive. If the experts disagree as to or not an exclusion has been achieved, then the evidence goes to jury on all the evidence in the case. Lastly, the third provision the Uniform Act is that if the tests show the possibility of patern then the judge in his discretion could submit the blood test evidence "depending on the infrequency of the blood type." That third s­ ion in the Uniform Act was not adopted by California, and this was commonly read over the years as evidencing legislative intent that blood group evidence should not be used to prove paternity. Witkin so stated in his book on evidence, and,as you know,if Witkin says California law it's like a command of the mikado; it has a way of a self-fulfilling prophecy. This conservative attitude carried on in other situations. For example, in the criminal area the California Supreme Court de­ cided a very famous case called People v. Collins [68 Cal. 2d 319 (1968)], in which the district attorney attempted to statistically prove that because of the correlation between certain characteristics of the defendant and certain characteristics of the person who com­ mitted the crime the defendant had a probability of being innocent of one in twelve million. Well, the California Supreme Court re­ versed that case in part because there was no basis for assumptions -2- because are under 95 You s out of a and the f PROFESSOR PETERSON: Yes, I have the figures for tests that have been done 1n UCLA Lab using HLA. CHAIRMAN FENTON: If I'm a little premature in what you're doing,then JUSt go on with your thesis. PROFESSOR PETERSON: And there 13 percent are below 90 per- cent about 13 percent -- and all the rest are above 90 with 67 per- cent scoring over 95 percent and 41 percent scoring over 98 percent. It's the curve that starts in the 80 and 90 percent region and then jumps up very sharply. So most of your people are down at the far end of the curve. very few people score l percent, 2 percent, 20 percent, 30 percent. They're almost non-existent. CHAIRMAN FENTON: Thirteen percent is not non-existent. PROFESSOR PETERSON: That's 13 percent below 90 percent. You see what I mean. CHAIRMAN FENTON: Mr. Hayden. ASSEMBLYMAN RICHARD HAYDEN: Mr. Chairman, I think I'm having the same problem perhaps that you are. I understand the curve now, but I don't understand the significance of that. What does it really mean? You have only 13 percent below the 90 percent level. How do you pret that? Is that what you were going to ... PROFESSOR PETERSON: No, the only point I'm making that you can use red cell tests and white cell HLA tests and get comparable results. You can get very high percentages in a very high number of cases. You can get a lot of people scoring over 95 percent. respect to the HLA test, you can do one test and you will probably a very high score. With the red cell test, you have to test a lot of systems, but if you do test a lot of systems you'll get a comparably high score of 95 percent or above. That's the point I'm trying to make. There really is not a difference between HLA and red cell te They should probably be treated in exactly the same way, based on the same genetic principles and the same mathematical calculations. CHAIRMAN FENTON: Mrs. Moorhead. ASSEMBLYWOMAN JEAN MOORHEAD: You selected a nation to g us that comparison because they do more? PROFESSOR PETERSON: That's right. Sweden has been do these tests for decades now.
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