*1 397 Mass. Commonwealth v. Beausoleil.
Commonwealth vs. Michael Beausoleil. 1985. 1986. September April
Franklin. Hennessey, & Lynch, C.J., Wilkins, Liacos, Abrams, Nolan, O’Connor, Present: JJ. Evidence, test, Paternity. Paternity, Competency. Scientific Search Law, Seizure, seizure, Search and Self-in- sample. Blood Constitutional crimination. and procedures
Discussion of the scientific involved in principles testing. [209-211] 273, 12A, § c. which for the admission the results provides General Laws grouping paternity proceeding test in evidence exclude of blood father, govern the possibility alleged does not (HLA) leukocyte antigen test.
admissibility of the results a human [211-213] materials, published legal scientific and as well as On basis of issue, addressing decisions of other courts court concluded (HLA) testing leukocyte antigen has been in the scientific accepted
human community proving and in the courts a reliable method [215-216] in evidence of applicable of the limitations admission
Statement (HLA) leukocyte antigen tests in results of human inculpatory J., dissenting concurring in part proceeding. [216-221] O’Connor the fact the admission of such evidence until part, permit would not first the defendant and the mother is of sexual intercourse between finding the trier of fact. established made [224-229] that human paternity proceeding requested the defendant in a who Where (HLA) reasonably had relied antigen performed test be leukocyte 12A, the test would believing results of G. L. c. only they exculpatory, if were considerations admissible in evidence evidentiary use holding permitting the fairness dictated that this court’s prospective application. [221-222] test results be limited provide Constitution and Fifth Amendments to United States The Fourth (HLA) leukocyte antigen court-ordered human grounds prohibiting no for test results and the admission of and red blood cell in a proceeding. [222-223] in evidence Judicial Court in the commenced Supreme Civil action 28, 1985. on February of Suffolk county *2 Abrams, The case was transferred to Court by Appeals Thereafter, J. Judicial Court on its own initiative Supreme retransferred it from the Court. Appeals
Bertha D. Assistant District for the Josephson, Attorney, Commonwealth. M. for the
Susan Tombs defendant. General, Leah W. Assistant Sprague, Special & Attorney Welfare, Cathleen J. May, of Publiс amicus Department curiae, submitted brief. 273, J. In this case we consider whether G. L. c.
Liacos, (1984 § 12A ed.), for admission of the of a providing results test in a grouping to exclude the paternity proceeding father, of the possibility alleged the intro- prohibits duction of (HLA) human leukocyte antigen test Further, results. we consider whether HLA test results bemay to admissible establish 273, if not barred L. G. c. (1984 § ed.). 12A defendant,
The Beausoleil, Michael was Sharon charged by child, Burke with her in a fathering under G. L. proceeding 273, (1984 § c. ed.). The defendant moved for a court order to G. L. c. § 12A pursuant (1984 ed.), requiring he, mother, and the child submit to an HLA blood test to determine whether his nonpaternity established. might motion, trial judge allowed the defendant’s but proceeded to trial and took Later, other evidence. of Mas- University sachusetts Medical Center’s medicine department laboratory submitted a based on a report stating statistical analysis results, 98.2%, was which it termed Because “very likely.” did not report exculpate defendant, entered a judge and ordered finding guilty the defendant to child $75 pay week. The support defendant for a trial de nova before a appealed of six. c. jury G. L. (1984 § ed.). 27A nova, to de
Prior the trial the Commonwealth filed a motion in limine requesting admission of the HLA test results. The judge denied the motion without hearing.1 The Common- wealth then filed a for relief petition G. L. c. pursuant judge’s
1 Thebasis for the denial is not apparent from the record before us. 397 Mass. (1984 ed.). § the denial the Commonwealth’s Treating as an allowance of motion under suppress motion (b) (2), (1979),2 P. 15 justice R. Crim. single the case to the Court. G. L. this court transferred Appeals (1984 ed.). we transferred the case c. 4A Subsequently, on own motion. to this court our that the judge The Commonwealth asserts appeal improp- limine, that G. L. c. denied its motion arguing erly the introduction of HLA (1984 ed.), § 12A does not prohibit The defendant to the argues results prove paternity. that, in further contends The Commonwealth contrary. *3 HLA test of any statutory absence prohibition, the fundamental admis- reliable to sufficiently satisfy results are evidence. The defendant for scientific sibility requirements is of evidence of the scientific that the record barren argues that he HLA He further argues test procedures. reliability were if HLA test results admitted would be “highly” prejudiced of his evidence issues, of the a brief discussion Before we address these involved in basic scientific principles procedures of evidence or In view of the absence is warranted. testing on the cited herein for we draw authorities findings, judicial discussion.3 our generalized 2 (2) (b) a or the Commonwealth that either defendant provides Rule 15 Court for single justice Supreme to Judicial right apply to a
has evidence suppress a lower court of motion disposition to appeal leave judge’s ruling is single justice reasoned that the trial to trial. The prior practical inasmuch as the equivalent suppress to allowance of motion — evidence, exclusion of pretrial is same in both instances effect thus, (2) and, (b) single justice determined is The applicable. rule raising in the of numerous cases Commonwealth pendency because of the results, admissibility speedy resolution the issue of the therefore, and, would be facilitated justice the аdministration warranted validity interlocutory party Neither contests by allowing appeal. lle, v. Ye Cf. Commonwealth 390 Mass. single justice’s ruling. (trial (1984) of defendant’s motion admission judge’s allowance ruling equivalent conduct was not rape victim’s sexual of evidence of (b) (1), right had no P. 15 therefore Commonwealth R. Crim. under Mass. interlocutory appeal). regard in this from we have received acknowledge assistance We of Public Welfare. Department amicus brief of the
Commonwealth Beausoleil. is based on the existence markers Paternity genetic which are inherited from a child’s and are found parents the various of the blood. More than 260 components genetic (red markers have been identified for red blood cells isoanti- and over markers have been gens) genetic identified for fifty (white white blood cells isoantigens). Paternity testing involves the identification of such markers followed by application Mendelian rules of inheritance. exclusion of Traditionally, been the has use to these which rules have primary been If a child lacks a put. genetic marker that child of the have, accused must if the child a marker that neither displays has, mother nor the father putative conclusively Lee, excluded. Current Status of Paternity Testing, 9 Fam. L.Q. 616-617, (1975). In such cases the impossibility of the accused’s is established to a medical certainty. D’Avella, See Commonwealth (1959) (“The tests to reliability is well prove nonpaternity [blood] established fact”). as a scientific
Six red blood cell tests most
have been
commonly
employed
first three
testing.
were discovered
Dr.
*4
Karl Landsteiner and his
ABO,
and consist of
colleagues
MNS’s, and Rh systems, known
as the
collectively
Landsteiner
series. Lemmon &
Murphy,
Use of the HLA
Evidentiary
Blood Test in
U.
Virginia, 19
Rich. L. Rev.
238-239
(1985). These three
systems yield cumulative
57%,
between 52% and
on the race
depending
of the putative
father, that at least one of them will exclude
of a
accused man. Joint
falsely
AMA-ABA Guidlines: Present
Status of
Serologic Testing Problems of Disputed Parentage,
10 Fam. L.Q.
(1976)
(hereinafter,
Joint
Guidelines). Even with the addition of three other red isoantigen
tests, Kell,
Kidd,
Duffy,
now
in con-
typically employed
junction with the
(enhanced
series
Landsteiner.
Landsteiner
series), the
of exclusion
of a nonfather is still no
Therefore,
than
greater
63% to 72%. Id.
although exclusion
conclusive,
means of these
paternity by
tests is
nonexclusion
We turn now to consideration of the issues raised on appeal. Statute c. 12A, entitled, now G. L. c. “An Act for blood tests to providing aid in the deter- grouping mination of The statute is a so-called paternity.” “exclusionary” statute, is, blood test one the introduction of permitting blood test results to exclude the only possibility The statute “In to dеtermine provides: any proceeding the ques- court, tion of father, on motion of the alleged mother, shall order the her child and the father to alleged submit tests, to one or more blood to be grouping made aby or other duly qualified physician duly qualified person, desig- court, nated to determine whether or not the alleged father can be excluded as the father of the being child. The results such tests shall be admissible in evidence cases where exclusion the alleged as such definite father has been established. If one of the refuses to parties father Peterson, the two. A Things Few You Should Know About Paternity Tests (But Ask), Were (1982). Afraid to 22 Santa Clara L. Rev. It is calculations, incorrect to the two equate there are documented 96%, cases in which the probability ranged of exclusion yet from 80% to the probability for a ranged nonexcluded male between 4.4% and 44%. Id. at 678-679. Apparently, widely way most accepted calculating the an paternity involves assumption regard without to the HLA other blood test results there is a chance 50% that the defendant is the father. This is termed prior odds of paternity Bayes’ and is a constant. Theorem is then used to determine how the HLA test results alter this prior probability. Peterson, supra at 685.
212 206 397 v. Beausoleil.
Commonwealth tests, with such the order court relative such comply unless fact shall admissible evidence such proceeding court, cause, otherwise orders.” good (Emphasis supplied.)7 tests,”
The statute refers to “blood specifically grouping come to red blood that has be associated with the terminology cell of which the enhanced tests those isoantigen comprising however, The HLA is Landsteiner series typical. system, See, Prob- a tissue Ellman & typing procedure. e.g., Kaye, and HLA Blood Prove abilities Proof: Can Testing Group 1131, (1979) (“HLA Rev. test- 54 N.Y.U.L. 1139 Paternity?, can be of as rather than blood group tissue ing thought typing Terasaki, “HLA 543 (discussing system typing”); Thus, Ohio, construing of tissue Court types”). Supreme 12A, 273, L. c. held HLA tests a statute similar to G. examinations, rather than “are basically genetic comparison are, therefore, not within the statutory blood tests” grouping admission of against grouping proscription Bell, 6 46, tests. Owens v. 53 (1983).8 Ohio St. 3d 7 “defend passage, The statute has been amended once since its the word being “alleged it in favor of words appeared ant” deleted wherever 848, Lobo, 1977, § 5. See v. father.” St. c. Commonwealth 441, MacKenzie, 436, (1982); v. Mass. 613 444-447 Commonwealth 368 (1975). 8 courts, construing broadly exclusionary more worded statutes Other have types” grouping to “blood or “blood instead of blood tests refer tests” statutory lan held that HLA tests are not literal encompassed also See, 873, Morrison, e.g., 880-882 App. v. 88 Cal. 3d guage. Cramer (statute (1979) term which is types” used the “blood associated tests); Payne, v. red cell blood Cutchember grouping Landsteiner series of (D.C. 1983) (HLA within test is not blood test 466 A.2d a convenient statutory meaning, merely but a tissue test for which blood Jones, (al medium); (1983) 128 testing App. Pizana v. 127 Mich. blood, accurately “it HLA is more though drawing involves test”); Phillips a blood typing as a of tissue than as system described Jackson, (Utah 1980) (“HLA necessarily tests are not P.2d Franks, tests”). Klein v. 111 Mich. as blood But see properly characterized (1981) (a “blood test” reading of term App. commonsense test; blood, including the HLA any performed that it test shows meаns A.F., inadmissible); results are therefore J.B. test (1979) (HLA meaning of test” within the 2d a “blood Wis. statute). exclusionary blood Wisconsin’s *7 the case law from other are convinced our review of We as the available scientific and medicolegal as well jurisdictions test, not a blood that the HLA system grouping commentary however, that the but is a tissue system. Assuming, typing we would be reluctant is ambiguous,9 statutory language 273, 12A, § of G. L. c. ascribe to the virtue Legislature of evidence of an intent to the introduction prohibit the derived that was not existence when from technique 1954, the advent of HLA statute was enacted in before long red blood cell was At that time testing. isoantigen testing prev- alent, but was Massachu- capable disproving paternity only. setts, States, like other enacted an blood many exclusionary test statute to effect to the scientific of the give knowledge stated, time. the of Idaho As Court similar given Supreme historical “it would be to conclude that perspective, illogical Act], Idaho by enacting Paternity legislature expressed [the an intent to bar use of evidence obtainable scientific through Crain, Crain then to it.” v. not known 104 Idaho techniques Callison, 666, 106, Accord Callison v. (1983). 671 687 P.2d Jackson, (Okla. 1984); 1228, Phillips 110 v. 615 P.2d 1233 view, therefore, 273, 12A, (Utah 1980). In L. our G. c. does not HLA tests.10 govern admissibility inculpatory 9We that there is acknowledge support proposition some system is a blood grouping example, test. For one commentator system twenty-five includes that HLA in a comparison group “blood Lee, 615, systems.” Paternity Testing, L.Q. Status Current 9 Fam. 623 (1975). (1985), Similarly, Moody, Hankerson 229 Va. support proceeding, Supreme Virginia laboratory Court of stated that a tests, (em technician “performed grouping including had blood HLA tests” Moreover, added). there phasis judicial has been some criticism of decisions tests, classifying thereby avoiding HLA tests as tissue application — Comment, exclusionary Paternity blood test statutes. See Human Leuko Paternity Are cyte Antigen Test Results Admissible Cases to Show Comment, (1984); Paternity, Likelihood of 88 Dick. L. Rev. 567 n.20 Testing Leukocyte Antigen System: the Human A Paternity (1980). Medicolegal Breakthrough, 20 Santa Clara L. Rev. think the the introduction of precludes Nor do we statute isoantigen derived HLA and red blood test results from combination of derived testing. of an accused’s example, For may index. This index be based on HLA from so-called alone, a number of product or it be the indices for
We turn now to consider the admissibility HLA tests as a matter of the common law rules of evidence. We stated in Commonwealth v. Stappen, (1957), even in the absence of statutory authority, test results which exclude the grouping possibility admissible, “if otherwise The court held that competent.” standard, blood tests that there exclusionary satisfy noting is substantial of blood authority support reliability group- tests to Id. at ing 176-177. prove impossibility See Symonds Symonds, (1982). It fol- *8 directive, in the lows absence of a statutory HLA test results should likewise be admissible if “otherwise competent.”
This court has
the standard of
for sci-
adopted
admissibility
States,
entific evidence articulated in
v. United
F.
Frye
293
1013,
(D.C.
1923),
1014
Cir.
wherein the Court of Appeals
stated: “Just when
scientific
or
crosses
principle
discovery
the line between the
and demonstrable
experimental
stages
difficult to define.
Somewhere
zone the eviden-
twilight
tial force of the
must be
аnd while courts
principle
recognized,
will
deduced from
go long way
admitting
testimony
expert
scientific
or
well-recognized
principle
discovery,
thing
from which the deduction is made must be
estab-
sufficiently
lished to have
in the
field
gained general acceptance
particular
Thus,
in which it
we have said that
belongs.”
“[j]udicial accep-
tance of a scientific
or instrument can occur
when
theory
it follows a
of scientists
general acceptance by
community
involved. When
substantial
by
supported
authority establishing
scientific
this court has not hesitated to
reliability,
accept
Fatalo,
benefits of science.” Commonwealth v.
346 Mass.
Peterson,
supra
systems
different blood
tested. See
at
view
692-693.
our
273,
12A,
noted,
G. L. c.
would
in neither instance. As one court
apply
produced by combining
the results
HLA tests with the Landsteiner
series
isoantigen
longer
red
but
grouping
other
tests
no
those of blood
tests
product
hybrid procedure
specifically
rather are the
of a
and are not
excluded
Miller,
blood test statute. Miller v.
language
applicable
(1984).
Supp.
Cоnn.
426 (1978);
Because this case is before anas interlocutory denial, of a without limine, of a motion in appeal we hearing, do not have the benefit of adduced at trial on expert testimony which to make the requisite Frye determination. We may prop- consider, however, erly of articles plethora concerning HLA as well paternity testing, decisions other courts the issue addressing now before us. See Commonwealth v. Kater, Vitello, Commonwealth v. (1983); 431-439; Commonwealth Lykus, (1975). On authorities, review of these we conclude that HLA has been testing as a reliable method of accepted both in the proving scientific and in the community courts.12 Association, American Medical the American Associa-
tion of Blood
and the
Banking,
American Association of His-
have all
HLA
tocompatibility
approved
determine
Shanholtz,
Haines See
57 Md.
App.
(1984). Moreover, while there is some disagreement among
medicolegal commentators as to how
*9
results should be
to the fact
presented
cases,
finder in paternity
11
not, however,
We have
Frye
utilized the
preclude
test to
the admissibility
of novel scientific techniques or
developed by
information
a particular expert
utilizing
See,
witness
accepted scientific instruments or theories.
g.,
e. Com
Devlin,
(1974) (identification
monwealth v.
216 397 evidence all that such is reliable should be nearly agree See, admitted in one form or another. Ellman & e.g., Kaye, and Proof: Can HLA and Blood Probabilities Group Testing 1131, (1979); Prove 54 N.Y.U.L. Rev. 1161 Page- Paternity?, — Test, Human Leukocyte Antigen Bright, Proving Paternity 135, 143, Peterson, (1982); 150 A 27 J. Forensic Sci. Few (But You Should Know About Tests Were Things Paternity 667, (1982); 22 L. Rev. 676 Ask), Santa Clara Afraid Lemmon & Use of the HLA Blood Murphy, Evidentiary 235, (1985). L. Rev. Test in 19 U. Rich. 238-239 Virginia, have determined those courts in other jurisdictions Finally, HLA test results reference admissibility evidence is have concluded such Frye unanimously as reliable in the scientific community.13 generally accepted Crain, 672; Richardson, Tice v. 7 Kan. See Crain v. at supra 509, ex. rel. (1982); 2d v. Commonwealth Perry App. 655, 1983); Haines v. 652 S.W.2d 661 (Ky. Kessinger, Shanholtz, Clarke, 98; v. 654 S.W.2d Imms supra Callison, v. at 111.14 (Mo. 1983); Callison App. that HLA we conclude Although testing generally accepted as a reliable means of determining in the scientific community derived from HLA and that evidence Morrison, (1979), 13 In Cramer v. 3d the court App. 88 Cal. the HLA tests as an legal “lauding cited articles in mediсal and periodicals but declined to determining paternity,” and reliable method for improved gained general accep before it whether the test had determine on record The case was community paternity. tance in the scientific proof determination of that issue. remanded to the trial court for cited, courts, without applying In addition to the cases a number of standard, Frye for determin technique have declared HLA a reliable Weeks, (Fla. Carlyon 2d Dist. Ct. ing See v. 387 So. State, (Ind. 1985); Davis v. 1980); App. 476 N.E.2d App. Bell, Hardy, Turek (1983); Pa. 6 Ohio St. 3d Owens *10 Bacot, Dep’t Servs. v. 158, (1983); South Carolina Social 161 Super. of 270, (1985). Moody, 485, Hankerson v. (1984); Va. 275 229 280 S.C. 489 that have barred the introduction of Even those few courts their blood test statutes within exclusionary test results on the basis of testing pater have conceded that HLA can indicate jurisdictions respective Chavez, 646, (1980); See Cardenas v. 103 Mich. nity reliably. App. A.F., 696, (1979). J.B. v. 2d 702-705 92 Wis. v.
Commonwealth Beausoleil. admissible, think it is therefore we to prudent adopt on the limitations affirmative use of such evi- following
dence.
First, HLA test results not be may presented in the form of a ex- of jury expressed simply probability calculation, is, clusion as a stated percentage popu- lation of nonfathers who would have been excluded tests conducted. The of exclusion array specific probability be relevant to issue of as it tells paternity jury the defendant falls within the small cent of the relatively per child; however, male who could have fathered the population “it does the true father from the nothing distinguish perhaps Peterson, millions of men who fall into this at group.” supra Furthermore, 680. are to confuse the jury apt probability exclusion with likelihood of even there though is no direct between the two. See notes & relationship Thus, even if the supra. of exclusion is considered probability relevant, “the potential the fact- confusing misleading finder is so that the court should great exclude it under its general exclude evidence which power creates a substantial issues, danger prejudice, confusing misleading (footnote Peterson, fact-finder” omitted). See supra. Proposed Mass. R. Evid. 403. See also State ex rel. v. Hausner Blackman, 233 Kan. (1983) of exclusion (probability is not on the issue of and its introduction probative Clarke, Imms v. prejudicial); (probability exclusion, unless in “extreme is of little aid to range,” jury State, issue); determining Davis v. 476 N.E.2d (Ind. 1985) exclusion, more, without App. (probability has been viewed as incomplete misleading).
Second, we believe it that the HLA test results preferable to the in terms of the presented jury paternity,15 15 of evidence admission of statistical is disfavored in this Drayton, (1982). Commonwealth. Commonwealth 50-51 Foley, Commonwealth (1979). 1 App. Ct. We recognize when a in a calculation is admitted action, arguable jury essentially it is that the presented guilt. statistical estimation of the defendant’s likelihood of It is true as *11 Mass. 206
Commonwealth v. Beausoleil. that has been termed “the most accurate of way conveying of the test data.” Ellman & at supra the significance Kaye, in the scientific com- 1146. It to be generally accepted appears that a munity statistically meaningful probability can be derived from a combination of HLA calculation only a mean of exclusion and red blood cell tests yielding probability Guidelines, 256-258; or more. See Joint at Imms supra of 90% Clarke, as a further limitation at 286. supra Accordingly, evidence, use of HLA we conclude that the on the affirmative a statistical estimate of the putative jury may presented where the combined tests father’s likelihood of at least of the nonfathers administered would exclude 90% tested.16
Third, threshold we think it to establish minimum necessary estimates. The Joint for admissibility probability that, show a recommend if the blood test results Guidelines should be likelihood” of the evidence pre- “strong reference to a This is to be determined by sented to jury. various table in the Joint Guidelines matching probabilities well, however, testify we an as to the likelihood permit expert handwriting compared that he has fingerprint, print, samples voice testimony necessarily probabilistic individual. Such is from same nature, actually in terms of expert’s opinion phrased whether or not the of a found at the scene probability example, fingerprint a stated Moreover, many the defendant. criminal cases crime was that of contested, and resolution of what is then identification of the offender is or voice may hinge entirely fingerprint print de ultimate issue on facto Thus, a paternity we not think that the introduction in identification. do accepted based on scientific of a estimate probability action of admissible scientific readily distinguishable type from principles in criminal cases for of identification. purposes evidence often introduced calculation of the accused’s permit This would with the enhanced Landsteiner series where the HLA test was administered tests, Whether currently practice. red blood cell which is the recommended red blood an done without use of concurrent analysis the results of whether the HLA test alone depend cell tests should be admitted will we allude in the minimal exclusion factor to which produce can 90% Shanholtz, testing supra text. See Haines (stating at & n. 1 that HLA nonfathers, citing testi of exclusion of produces alone 92% Committee). Cf. Joint mony Proceedings to the Senate Judicial presented Guidelines, exclusion of (stating 80%) under HLA alone is between 78% nonfathers . *12 “verbal Probabilities corresponding paternity predicates.” of between and 90% 95% are said to make paternity paternity while those between “likely,” 95% 99% make it “very Guidelines, Thus, at likely.” Joint 282. read supra we the Joint Guidelines as of recommending probabilities below be 95% inadmissible. This accords with the paternity
view of commentators. As one stated: “The many significance aof of is difficult to evaluate. It ‘high’ probability paternity clear is that nonexcluded nonfathers can score comparatively (since of high most nonfathers are probabilities paternity excluded, the well). rest must of ‘fit’ necessity In reasonably one as many nonexcluded nonfathers study, scored over 88% as scored under 88%. On the fathers have average, higher than nonexcluded probabilities (in nonfathers paternity same 98.04%), mean for fathers was study, so paternity index be must rather before it differentiates the high really nonexcluded nonfathers from the nonexcluded) (obviously fathers. There is no general in the scientific agreement commu- that a below has nity 95% Scientists significаnce. that a generally agree than ... probability greater 95% is so significant, should be attached significance to those only Peterson, (Footnote omitted.) 95%.” probabilities exceeding A Few Things (But You Should Know About Tests Paternity Ask), Were Afraid to 22 Santa Clara Rev. L.
(1982).17 We agree, test require blood inculpatory evidence shall be admissible if the father’s is or 95% putative paternity greater.
Fourth, admissible, though blood test evidence a likelihood of establishing than greater equal should not' 95% be conclusive on the It is issue paternity. Cross, See Armitage & Paternity Testing Setting, Judicial 39 J. 477, 480 (1983) B. (suggesting Mo. that whenever the calculated probability 95%, for a than which putative father less level below they any deem inculpatory results more tests should be con nonprobative, figure presentation ducted either to raise this to an level acceptable for father); trier of fact as evidence of or to exclude the putative Shanholtz, (1984) (citing recently enacted Haines v. 57 Md. App. Maryland authorizing blood test statute admission alleged results where statistical father’s 97.3%). at least v.
Commonwealth Beausoleil.
some evidence of
which the
must con-
merely
jury
sider,
with all of the other
evidence
along
mating
presented
Crain,
See,
Crain
their determination.18
v.
672-
e.g.,
673; Turek Hardy,
South
(1983);
Pa.
Super.
Bacot,
Carolina
Social Servs. Dep’t of
280 S.C.
free,
(1984). The
to disbelieve that the
jury
example,
mother,
father ever had intercourse with the
or that
putative
he had intercourse with her
con-
during
period
probable
the blood test evidence
likeli-
ception, despite
indicating
high
case,
hood
such
would
warranted
jury
See,
had
established.
not been
concluding
*13
Erie ex
Commissioner
Social Servs.
County
e.g.,
of
of
of
rel.
1985)
Mannion Murray,
(N.Y.
v.
The estimated defendant’s 98.2%, instant case above the minimum threshold for admis- established the record sibility today. Although indicates that was derived from HLA and red figure blood cell typings, it is not clear what red exactly blood cell tests were performed and whether the cumulative of exclusion for all the tests administered was at least we 90%. would re- Normally, mand the case to thе trial to make this judge factual determi- However, nation. we conclude that a remand is unnecessary in this instance. “soft” nonblood evidence adduced rarely will coincide with this *14 assumption. Consequently, the ultimate probability of paternity estimate is only correct in those few in cases which the fact initially finder believes Thus, that the probability paternity exactly 50%. Id. at 684-686. various have been advanced proposals jury might so the be enabled to assessment, determine the of paternity based on their own initial evidence, See, on consideration of the soft prior of the odds paternity. e.g., Kaye, Ellman & Probabilities and Proof: Can HLA and Group Blood 1131,
Testing Paternity?, (1979) Prove 54 N.Y.U.L. Rev. 1152-1158 (suggesting that witness should expert demonstrate means of a chart the effect the blood test results on juror’s would have a own estimates prior paternity); odds of Peterson at 686-689 a formula (proposing jurors which could use to determine regarding how their own conclusions prior paternity the odds of would affect the estimate paternity acknowledge based on an assumed 50% the prior probability). While we calculatiоn, reject basic flaw in the probability we these alter- view, unduly complicated. native as proposals they present our an even greater the a paternity adjudication degenerate likelihood that will into trial if single probability mathematics than a intro- paternity estimate is duced. We leave to defense highlighting counsel the task of cross-exami- nation the exact nature of the calculation and its weaknesses. v.
Commonwealth Beausoleil. the of fairness dictate that the results of blood Considerations be introduced to the tests to defendant’s sought prove excluded. The defendant that the HLA blood test requested 273, A, L. c. the § to G. statute citing be performed pursuant It was his in his motion to the belief under judge. clearly statute, be admis- the terms results of test would him if No had sible decision exculpatory. judicial given Blazo, Commonwealth to See v. cause assume otherwise. (1980).20 We think the defendant’s reliance Ct. App. 273, 12A, reasonable, to § L. c. and we decline on G. apply decision this defendant. retroactively today’s cases, Last, because of its in future implications address defendant’s claim that court-ordered briefly we wishes, raises con- HLA blood defendant’s testing, against under the Fourth and Fifth Amendments stitutional issues California, the United States Constitution.21 In Schmerber 757, (1966), the United 384 U.S. States Supreme held that the extraction of blood from noncon- Court sample an defendant with automobile while senting charged driving Blazo, fathering supra, illegiti an prosecution In Commonwealth 11, § of G. L. c. since repealed, Appeals mate child violation not his judge denying held that the trial had abused discretion Court 12A, that parties § under L. c. submit defendant’s motion G. testing. court that at time the was made request HLA reasoned testing yet Recognizing that it is reliability of HLA was not established. excluding single, testing system for accepted powerful as the most now fathers, in future id. at the court went on to state that putative testing when re carefully ordering should consider HLA so judges cases expres 327. dictum be viewed quested by defendant. Id. at This statutory testing language that HLA comes within the sing the conclusion Although contrary c. 12A. id. at 327 n.l. we reach of G. L. See Blazo, agree underlying premise we today, conclusion excluding On this there is no point is a reliable means of Thus, statutory absent HLA test results are admissible exculpatory dispute. (1957), authority, Stappen, Commonwealth v. *15 paternity. on the Commonwealth may such results conclusive issue D’Avella, (1959). 339 645 Rights of the Constitution We note that art. of the Declaration the Fifth Amend necessarily coextensive with of the Commonwealth not self-incrimination. See protection against broader provide ment and (1982). parties The have Hodge, 386 Mass. Commonwealth the of art. in their briefs. raised issue not in under the influence of was reasonable intoxicating liquor the circumstances and did not violate the defendant’s right unreasonable searches and seizures under the Fourth against Amendment, self-incrimination, his or against privilege Fifth As to the Fourth Amend- Amendment. guaranteed by ment, the Court noted that there cause to arrest was probable the defendant for crime and stated that the extrac- charged, tion of blood ais commonplace involving virtually procedure risk, trauma, no Id. at 771. With to pain. regard claim, Fifth Amendment held Court privilege self-incrimination against testimonial only protects against and does not extend to blood compulsion testing, compulsory because evidence is in blood-testing nature rather than physical testimonial. Id. at 764.
HLA and red blood cell are no more testing procedures intrusive or testimonial than those at issue in Schmerber. addition, cause to believe probable test results will be exists when a is issued on complaint probable cause, case, as in the instant father with charging putative Fourth Fifth Consequently, Amendments no red provide grounds court-ordered HLA and prohibiting Meacham, blood cell testing.22 See State v. 93 Wash. (1980) (court to and Fourth rejected right Amendment privacy to court-ordered HLA challenges testing); Albany County Dep’t ex Social Servs. rel. Sousis v. Seeburger, 112 A.D.2d (N.Y. 1985) (court to rejected right Fourth privacy, Amendment, and Fifth Amendment to court-ordered challenges HLA testing). 22 Thus, theory, the defendant might be ordered trial to judge submit to HLA and red cell testing Although on remand. such an discussed, directly order would not implicate supra, those fairness concerns which involvеd justifiable statutory the defendant’s reliance on the language 12A, and the Blazo in requesting testing,
of G. L. c. decision we think the applicable. statutory basic fairness consideration still prior today case law this Commonwealth appeared prohibit results, and any change introduction of blood test we think regard ought apply charged to defendants after prospectively opinion. date *16 Mass. 206
Commonwealth v. Beausoleil. we hold that HLA tests are not blood summary, grouping L. c. 12A. tests within the of G. meaning Exclusionary (see 20) results relevant at common law at 222 note& supra however, Further, be admitted. we conclude that may, in the scientific generally community accepted for or offer reliable On procedure proving excluding paternity. the of statistical evidence of accused’s prosecution, prob- of shall be admissible the HLA ability provided derived, which the calculation was either alone or in con- red with whatever standard tests were isoantigen junction per- formed, of a cumulative of exculsion 90% yields probability that and further no еvidence greater, provided under 95% be admissible. Such shall on the and its evidence is not conclusive issue paternity, admission is normal foundational subject requirements the admission of scientific evidence. in HLA test results to be introduced sought excluded, not instant case shall be and the defendant may date additional tests. After the
be compelled undergo (as and an father well as mother opinion, alleged (see child) be to submit such test procedures required 222, 223). is to charge Trial on proceed accordance with this in opinion.
So ordered.
I
O’Connor,
J.
and dissenting
(concurring
part
part).
that
result reached
court because I agree
concur
to the defendant
would
unfair to
retroactively
it
apply
rule announced today.
evidentiary
admis-
addresses
future
The bulk of the court’s opinion
HLA test
estimates based on
sibility
I
is to
subject
results to establish
it
is a tissue
I
that the HLA
attention.
my
agree
procedure
direct
test,
test,
admissibility
not blood
consequence
based
estimates
HLA test results
ed.).
(1984
§ 12A
G. L. c.
thereon
not controlled by
*17
too, that,
found,
I
cause
beеn
there is
probable
having
agree
to
de-
no constitutional
a court order
a
requiring
impediment
Furthermore,
fendant to submit to HLA
I
the
testing.
accept
conclusion that HLA
court’s
has
gained general accep-
in
tance
the
scientific
as a reliable
appropriate
community
indicator of the
of
if it be established
probability
paternity
by
that
other evidence
the defendant had
the
intercourse with
and
mother
a time
under
conditions
reasonably might
conclude, however,
lead to
in
have
the
I
conception
question.
court, that,
from
because the
of
differently
probability
a statistical
yielded by
analysis
HLA test
paternity
employing
is
results
on an
that that intercourse oc-
premised
assumption
curred, the test results
be
should not
admitted in evidence
unless
assumed fact is first established
made
by finding
That,
course,
the trier of fact.
would
of
bifurcation
by
require
trial,
which
neither alien
our
procedure
practice
burdensome, and,
view,
nor
unduly
is dictated in
my
pater-
considerations of
nity
fairness.
proceedings
notes,
court
The
ante at
that “the
of
probability
paternity
Theorem,
use of
Bayes’
mathematical formula
[is derived]
which describes
discovered statistical
way newly
informa-
tion alters a
established
ex-
previously
court
probability.”
n.6,
ante at 211
plains,
the most
“[apparently,
widely
of
way
accepted
calculating
involves
an
that without
assumption
regard to
HLA other blood
test results there is a 50% chance that the defendant is the
termed
father. This is
odds of
and is a
prior
constant.
Theorem is then used to determine
Bayes’
how
alter
added).
results
this prior probability” (emphasis
The court further
ante at 220-221
explains,
n.19: “There has
been criticism of the
statistic because
it is
on a
likelihood
based
of a 50%
preliminary assumption
added],
of the accused’s
In other words
[emphasis
the calculation starts with the
that the accused
one
premise
time,
random male both had intercourse
‘at
mother
circumstances,
and under
in terms of timing, fertility, frequency
coition,
control,
and use of birth
them both
making
equally
Peterson,
to have
the child’
likely
(emphasis original).
fathered
Although not to a legitimately helpful resolution of the whether a defendant had question intercourse with the circumstances, mother in relevant it would be naive equally likely true, both then, to have the child. assumptions these fathered If then, Bayes’ does accurately Theorem the odds that reflect the accused is the father. “Since there way is no prior calculate the odds of they must — be inferred witnesses, from ‘soft’ evidence the testimony of cir- *19 evidence, cumstantial admissions and all of the other evidence which the fact-finder may prefer ignore in favor of the ‘scientific proof.’ Until the fact-finder, index, disregarding the persuaded is that the above true, assumptions Bayes’ use yield Theorem will result. false courts, commentators, “Time again, and possibly and even have experts disregarded importance the of the soft evidence and jumped hastily to the conclusion that the index represents the actual odds of practical As a may matter it justice well be that is usually done because the soft justify evidence would the conclusion that the above assumptions are satisfied. danger The is that the habit of incorrectly applying these statistics will mesmerize fact-finders to such an extent that the statistics will be improperly used in cases where the soft evidence tmly is weak.” Peterson, added.) (Emphasis supra at 684-686. HLA tests be compared with fingerprint comparisons and the like as scientifically acceptable procedures to establish probabilities, as the court observes, However, ante at 217 n.15. it is important to understand that fingerprint comparisons are designed to show that the defendant atwas the moment, scene of the crime at a relevant or that the defendant inwas possession crime, object of a particular related to the while HLA tests are not designed to show that the defendant was “on the scene” at the critical time, but what the probability of his paternity is if he was on the scene. 397 Mass. finders, fact the extreme to particularly inexperienced expect evidence of estimates
jurors, ignore results, an based on HLA test through presented expert, the issue inter contested whether such determining usually asserts, case, the mother course had taken place. typical denies, The and the defendant the defendant’s involvement. in Commonwealth has burden of defendant’s proving doubt. See Commonwealth v. volvement reasonable beyond Lobo, (1982); v. MacKen 385 Mass. Commonwealth zie, 613, 619 n.5 (1975). It be said reasonably cannot that an that the and with confidence testimony expert’s proba misused not be defendant’s 95% will bility in the the fact finder to resolve the issue Common credibility an made wealth’s favor. Even if be gratuitously assumption and given will be and testimony fairly clearly expert’s cross-examination, tested that the fact danger skillfully finder be moved to decide between the claims conflicting will that the defendant “fits on the basis the expert’s testimony The of Peterson’s article mold” inescapable. portion in n. 1 of my opinion supports proposition. quoted but, in my court risk of which I recognizes speak, or it. court view, not deal with The does adequately appreciate if judge, jury counters the risk by requiring requested case, test results as instruct the not to consider HLA jury intercourse, “un- to consider that evidence evidence of not about . . . that sexual intercourse less have found they the mother had taken between the time of place conception n. 18. the interests Ante at 220 Because and the father.” alleged substantial, is so the incidence of risk high, at risk are so I content to meet is so am not to avoid the-risk simple, way instructions. the risk requiring jury by simply can be over effects “The naive assumption prejudicial ... lawyers instructions to all come jury practicing *20 States, v. United fiction.” Krulewitch know to be unmitigated J., (citation (1949) (Jackson, concurring) U.S. States, 123, 135 U.S. omitted). See Bruton United the in which the risk that (“[T]here some contexts (1968) cannot, and not, great, instructions is so follow will jury the to the defendant that the of failure so vital consequences of the be and human limitations cannot jury system practical DiMarzo, 681- Commonwealth v. ignored”); J., (1974) is (“It reasonable (Hennessey, concurring) us to be confident that in most cases instructions ac- limiting Nevertheless, their in . . intended cases . complish purpose. where the evidence an to limitations has subject extremely for unfair we have a to be high potential prejudice, duty skep- the tical as to effectiveness of instructions .... limiting case . Bruton is relevant. . since that reasoning highly case the the even recognized futility, absurdity, expecting a in some circumstances conform jury to instruc- limiting tions”). fact,
Because the in futility triers of expecting especially an with instruction to the juries, comply ignore factor on based HLA in whether determining the had defendant intercourse the at with mother or about the time of I would conception, hold HLA based рrobability estimates are in inadmissible except second segment of bifurcated trial following finding that critical issue or the judge After an affirmative jury. finding, court, within the limitations ante at 217- expressed by 221, I would hold the be evidence to admissible to show that the defendant is the father Obvi- child. then, if the ously, court were to my accept reasoning, of HLA-based estimates be utility would probability paternity limited. Such be quite evidence not would only inadmissible in the absence of the above but it would finding, superfluous case which the fact any finder the jury (perhaps response to a finds a reasonable doubt that the special question) beyond defendant was the one to have had intercourse only mother at relevant time. The value test results would have in those cases in which only it defendant to open contend even could his act have resulted in the though men, unidentified, another man or other conception, perhaps also had sexual relations with the mother time. relevant time, then, It is at
estimate meeting articulated court requirements without to the de- highly being unfairly probative prejudicial fendant.