State v. Hartman

¶1(dissenting). I would allow all of the results of the blood test to be received in evidence and considered by the trier of fact. As we held in In re the Paternity of M.J.B.: T.A.T. v. R.E.B., 144 Wis. 2d 638, 425 N.W.2d 404 (1988), which was a paternity case and therefore a civil action, the test is credible evidence the weight of which should be argued to the factfinder. Because this is a criminal case, however, the test should be admitted only through expert testimony before its weight can be considered.1 The requirement of an expert to introduce the test results, coupled with the opportunity by defense counsel to examine the expert and thus explain the method of calculating paternity, sufficiently compensates for any alleged problems inherent in the Bayesian formula.

¶2The 50 percent prior chance assumption does not require shifting the burden of proof to the defendant and is not an impermissible assumption; rather, it is part of a scientific theorem and the jury should be so told. Contrary to the majority’s assertion, the assumption is valid because the defendant has been named as the male having had sexual intercourse with the mother. In this case, the mother was the victim of a sexual assault and accused the defendant of being the father of her child as a result of his act. Therefore, the defendant was not randomly selected, but rather, had been named in a sworn complaint or information. That is, the "assumption” that is used in the probabili*20ty of paternity computation was not presented into evidence in a vacuum, but was instead admitted only after a factual basis for the statistic was offered into evidence.

¶3As we stated in in order for the probability of paternity statistic to have any relevance, there must be proof of a sexual act between the defendant and the mother during the conceptive period. Once competent evidence is presented on that issue, the trier of fact should then be able to consider the probability of paternity along with all other evidence in determining guilt beyond a reasonable doubt. Effective cross-examination by defense counsel can sufficiently safeguard against the concerns raised by the majority.

¶4Thus, even if I were to join the majority, I would not agree to limit the use of the blood test results to the two statistics held admissible by the majority. If only the probability of exclusion and paternity index are allowed to be presented to the jury, they are incomplete, misleading and at best confusing. See Davis v. State, 476 N.E.2d 127, 137 (Ind. App. 1985). Most importantly, however, they are far less probative of the fact at issue than the probability of paternity statistic. Such piecemeal use of the blood test results is of minimal advantage to the mother’s case or the prosecutor. If that is all that is admissible, the prosecution would be better advised not to use the blood test at all as evidence. One out of 2,000 is not a very convincing statistic and is of questionable value. See majority op. at 15, n. 6. Rather than permitting a partial use of figures resulting from the blood test, I would exclude all of the results from being used during a criminal trial.

¶5*21The probability of exclusion only measures the percent of falsely accused men who would be excluded as the father. While this figure does not rely on the 50 percent prior chance assumption, by itself it is a misleading and confusing figure. This statistic does not measure the likelihood that the defendant produced the child born allegedly as a result of the sexual assault. Introduction of the probability of exclusion will necessarily raise this question in the jurors’ minds. Rather than provide any meaningful information to aid in their determination, the majority leaves the jury to speculate about the likelihood that the person accused is actually the child’s father. Moreover, the probability of exclusion is expressed in confusing and abstract terms; it reveals only the percentage of falsely accused men who would be excluded as the father. At trial, the defendant has been accused of being the father, not unknown men who would be falsely accused by the victim mother.

¶6The paternity index ratio measures the genetic odds in favor of paternity. However, it describes only the relative likelihood of the defendant producing a child with the same genetic markers. Again, it does not measure the relative likelihood of producing the child born to the victim. As such, when presented without the probability of paternity, this figure also leaves the jury to speculate and raises more questions than it answers.

¶7Contrary to the majority’s belief, the probability of paternity statistic does not "assume that the defendant committed the crime." At 16. It is true that the blood test examiner, in order to calculate this statistic, must assume that it is as likely as not that the putative father had sexual intercourse with the mother. This limited assumption is made for statisti*22cal purposes only in order to calculate the relative likelihood of paternity. In this regard, it is indeed neutral, because it does not consider evidence outside of the genetic data, however damning. That is, even if the alleged event of sexual intercourse occurred in front of witnesses, the statistician would still compute the results on the basis of only a 50 percent prior likelihood of intercourse. The blood test examiner certainly makes no assumptions whatsoever about criminal acts. The assumption is in this regard statistically neutral. See Davis, 476 N.E.2d at 138.

¶8The majority suggests, in effect, that the evidence is not legally neutral, i.e., an assumption is made that the defendant had sexual intercourse with the victim. Because, as we held in blood test results can never be introduced without independent competent evidence of that very fact — sexual intercourse during the conceptive period — any “assumption” is made with sufficient foundation. In essence, the blood test results corroborate other evidence admitted.

¶9Moreover, cross-examination and argument by counsel will reveal to the jury that the assumption is made in the statistical computation. As with all expert testimony, the jury is free to reject or accept its value. The assumption does not shift the burden of proof, but it does bring courts into the 20th century by permitting the use of a universally acceptable scientific formula with a recognized high degree of accuracy. The use of all of the test results, in my opinion, has great probative value which outweighs any prejudicial effects.

¶10Finally, it should be noted that several other jurisdictions permit the introduction of HLA blood test results, including the probability of paternity statistic, into evidence in criminal trials where a child *23is born allegedly as a result of a sexual assault. See, e.g., Holley v. State, 523 So. 2d 688 (Fla. App. 1988); State v. Smith, 735 S.W.2d 831 (Tenn. Cr. App. 1987); State v. Spann, 219 N.J. Super. 85, 529 A.2d 1039 (1987); State v. Thompson, 503 A.2d 689 (Me. 1986). See also Davis, supra(wherein court affirmed defendants’ convictions for felony child neglect and expressly upheld the use of probability of parentage statistics which relied on 50 percent prior chance assumption); Annot., Admissibility, Weight, and Sufficiency of Blood-Grouping Tests in Criminal Cases, 2 A.L.R.4th 500 (1980 & 1988 Supp.) and cases reviewed therein. Indeed, the conspicuous absence in the majority opinion in this case of any authority from other jurisdictions regarding the inadmissibility of probability of paternity test results in criminal prosecutions further convinces me that this statistic should be considered together with the other HLA test results when relevant.

¶11I would affirm the court of appeals.

¶12I am authorized to state that JUSTICE LOUIS J. CECI joins this dissenting opinion and JUSTICE ROLAND B. DAY joins in part.