Indiana Law Review


Use of Human Leukocyte Antigen Test Results
to Establish Paternity

I. Introduction

The need for establishing paternity may be greater today than
at any previous time. Numerous legal consequences in our society
are dependant upon establishing a paternity relationship, and with
the expansion of the welfare system and rapid growth of child sup-
port legislation on both state and federal levels,' paternity pro-

ceedings have become a substantial state concern. For example,
paternity must be established in order for the illegitimate child to
exercise his legal rights, duties, privileges, and obligations in rela-
tion to his putative father.^ Proof of paternity is a crucial factor in

determining whether the child can inherit by intestate succession
from his natural father^ or whether he can receive father-related
welfare benefits.'' Additionally, state initiated paternity suits charge

'See Federal Social Security Act, Title IV-D. 42 U.S.C. §§ 651-60 (1976). Part D of
Title IV of the Act requires states to establish or designate an agency to obtain and

enforce orders for support of children for whom application to Aid to Families with
Dependent Children has been made and, where necessary, to establish paternity in
order to reduce the number of welfare recipients. Id.

^The illegitimate is entitled to fourteenth amendment equal protection in many
substantive areas without first establishing paternity. Unacknowledged illegitmate

children were accorded the right to recover for the wrongful death of their mother in

Levy V. Louisiana, 391 U.S. 68 (1968), and they can inherit by intestate succession

through their mother. See A-.B-. v. C-.D-.. 150 Ind. App. 535, 277 N.E.2d 599
(1971); Ind. Code § 29-1-2-7 (1976). Illegitimates are also entitled to receive support

through various federal, state, and local welfare programs. See Federal Social Security

Act, Title IV-D, 42 U.S.C. §§ 651-660 (1976).

'Lalli V. Lalli, 439 U.S. 259 (1978) (the Court upheld the constitutionality of a

statute which required an order of filiation within a specified period of time (in this

case, two years after the child's birth) before the illegitimate was entitled to inherit by

intestate succession from his natural father); Trimble v. Gordon, 430 U.S. 762 (1977)

(the Court held that a statute which automatically disallows an illegitimate child's in-

heritance by intestate succession from his father violates the Equal Protection Clause

of the fourteenth amendment). For Indiana case law applying Lalli, see Marsch v. Lill,

396 N.E.2d 695 (Ind. Ct. App. 1979) and Tekulve v. Turner, 391 N.E.2d 673 (Ind. Ct.

App. 1979) (holding that Ind. Code § 29-1-2-7 (1976) which allows an illegitimate child to

inherit from its natural father where paternity of the child has been established in a

court of law during the father's lifetime, or where the putative father marries the

mother and acknowledges the child to be his own, does not violate the Equal Protec-

tion Clause of the fourteenth amendment).

'Mathews v. Lucas, 427 U.S. 495 (1976) (the Court upheld the constitutionality of

certain provisions of the Social Security Act which condition the eligibility of il-

legitimate children for a surviving child's insurance benefits upon a showing that the

deceased wage earner was the child's parent and that the child was dependent on the

831



832 INDIANA LAW REVIEW [Vol. 14:831

a father with the duty to financially support his child, thereby

reducing the state's welfare obligation^ and alleviating the burden

on taxpayers.

The public interest in shifting the support obligation of an il-
legitimate from the state welfare department to the responsible

father and the increasing number of substantive legal rights con-
ferred on illegitimates are modern developments which mandate
fundamental reform of the paternity action. In response to this need

for reform, Indiana has taken affirmative steps toward the accurate

and impartial identification of the father of an illegitimate child. The
Indiana legislature recently amended its paternity statute* to
facilitate compliance with the federal law which makes federal funds
available to states that develop appropriate plans for establishing

paternity and enforcing child support.' The statute now authorizes
the state or county welfare departments to initiate paternity actions

in cases where public assistance has been furnished for the benefit
of the child.* In addition, Indiana is in the vanguard in liberalizing

and revising its antiquated rules of evidence in paternity actions to

reflect recent scientific advancements in the areas of blood grouping

and tissue typing. Indiana Code section 31-6-6.1-8' was amended on

parent for support); Jimenez v. Weinberger, 417 U.S. 628 (1974) (the Court held that

Social Security Act § 416(h)(2)-(3), which entitles children of wage earner to his disabil-
ity benefits, is unconstitutional because it arbitrarily discriminates between classes of

illegitimates); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972) (dependent unac-
knowledged illegitimate children are on an equal footing with dependent legitimate

children and are therefore entitled to recover benefits under Louisiana workmen's

compensation laws for the death of their natural father). Although under Jimenez and

Weber an illegitimate can recover despite the fact that paternity has not been legally
established, nevertheless there must be a showing that the child is in a "direct blood

and dependency relationship with the deceased" in order to avoid spurious claims.

406 U.S. at 175. The illegitimate still has to prove that the wage earner is his natural

father in order to receive death or disability benefits through him. In both Jimenez

and Weber, the children were at least informally acknowledged by the father and were

totally dependent on the father for support.

^See Shaw & Kass, Illegitimacy, Child Support, and Paternity Testing, 13
HOUS. L. Rev. 41 (1975); Krause, Scientific Evidence and the Ascertainment of Paternity,

5 Fam. L.Q. 252, 252-53 (1971).
"IND. Code §§ 31-6-6.1-1 to -16 (Supp. 1980) (amended by Act of Feb. 27, 1980, Pub.

L. No. 183, §§ 1-9, 1980 Ind. Acts 1595).

'Social Security Act, Title IV-D, 42 U.S.C. §§ 651-660 (1976 & Supp. Ill 1979).
*lND. Code § 31-6-6.1-2 (b) (Supp. 1980).

7d. § 31-6-6.1-8 (Supp. 1980), provides the following:

Upon the motion of any party, the court shall order all of the parties to the

action to undergo either a blood grouping test or a Human Leukocyte Anti-
gen (HLA) tissue test. The tests shall be performed by a qualified expert ap-

proved by the court, and the results of the tests may be received in evi-
dence.

Id. (emphasis added).



1981] HLA TESTS §33

February 27, 1980,'" to allow the results of a human leukocyte an-
tigen (HLA) tissue typing test to be received into evidence." This
test is more sophisticated than its predecessors and permits a more

"Act of Feb. 27, 1980, Pub. L. No. 183. § 1-9, 1980 Ind. Acts 1595.

"The principles of genetics and blood chemistry which form the basis for the

paternity tests are beyond the scope of this Note. For a detailed scientific analysis of

these tests, see Abbott, Sell & Krause, Joint AMA-ABA Guidelines: Present Status of
Serologic Testing in Problems of Disputed Parentage, 10 Fam. L.Q. 247 (1976)

[hereinafter cited as the AMA-ABA Guidelines]; Lee, Current Status of Paternity
Testing, 9 Fam. L.Q. 615 (1975); Terasaki, Resolution by HLA Testing of 1000 Paternity
Cases Not Excluded by ABO Testing, 16 J. Fam. L. 543 (1978).

A short description of the HLA Antigen Blood Grouping Test is, however,
necessary so that the reader may more fully understand its far-reaching implications
on the ascertainment of paternity. The HLA test is a new method which is based on
the identification and typing of antigen markers found in white blood cells and other

tissues of the body. Carlyon v. Weeks, 387 So. 2d 465, 466 (Fla. Dist. Ct. App. 1980).

It is essentially a tissue-typing test which can be performed on, for example,

lymph or spleen tissues as well as white blood cells. The HLA test was
developed and used primarily in organ transplantat[ion] for purposes of

determining if organs from a donor would be accepted or rejected by the

possible recipient.

Id. See also S. SCHATKIN, DISPUTED PATERNITY PROCEEDINGS, § 8.08 (4th rev. ed. 1980).

The HLA testing procedure is similar to the red blood cell typing procedure used
for the ABO blood group system. Carlyon v. Weeks, 387 So. 2d at 466. However, the
results of the ABO system render only a 50% to 60% chance that a particular man is
the father. Cramer v. Morrison, 88 Cal. App. 3d 873, 878, 153 Cal. Rptr. 865, 867 (1979).

The HLA system is a more sophisticated procedure which involves a larger number of
antigen markers in the white blood cells. Id. The basic theory is that by identifying the

antigen markers of a child and of the mother, the child's antigen genetic markers

which could only be inherited from the father can be determined. Terasaki, supra, at

548-49. The advantage of the HLA test is that, due to the large number of antigen
markers (as many as sixty-two) which have been identified, it may disclose rare anti-
gens on the cells of two people which they probably have in common because of
genetic inheritance rather than through mere chance. The HLA test thus permits iden-
tification of the father with a higher degree of certainty than was possible by the ABO
red blood grouping. Id. at 543-44, 548-49, 554-55. Most people are "rare" types in the

sense that only about one out of a thousand people have a similar HLA type. Id. at
544. Therefore, a "rare" type that occurs in a putative father and that also occurs in a

child produces a high degree of probability (between 95% and 99%) that the putative
father is, in fact, the father. Id. "On the other hand, if the putative father is wrongly

accused, he can usually be excluded because the child would have inherited a different

rare type from the actual father." Id.

Because of this remarkable advance in the number and accuracy of paternity
tests, the probability of determining whether the accused man is actually the father is
greatly increased. Probability estimates are based on the frequencies of genetic

markers in the general population; the investigator compares the "frequency of a given

father-mother-child constellation in a sample of the alleged actual father's blood with

the constellation in a sample of blood from a random man." Krause, The Uniform
Parentage Act, 8 Fam. L.Q. 1, 11 (1974). However, although these paternity tests can

conclusively establish exclusion, they can never establish the likelihood of paternity

with absolute certainty. Krause, supra note 5, at 261.



834 INDIANA LAWREVIEW [Vol. 14:831

precise typing of a father and child's blood. '^ As the requisite blood
type becomes more defined, a higher percentage of men are excluded
from being the father of the child in question, thereby narrowing

the group of potential fathers.'^ Consequently, proof of parentage is

more conclusive.*^ The 1980 amendment is all the more important
because it does not specify whether these new tests are admissible
to establish paternity rather than merely to exclude the probability

of paternity.'^ Thus, the way is open for the introduction into
evidence of the results of these tests to show the likelihood that the
named man is the actual father.

Despite the obvious probative and evidentiary value of these
medical techniques on the issue of paternity, there are several

drawbacks in introducing such highly complex scientific evidence
into the trial process. This Note will concentrate on balancing the
probative value of these advancements against the prejudicial effect
they may have on the accuracy and fairness of the fact-finding pro-
cess. First, however, a review of Indiana and national legislation

concerning the use of blood group evidence in paternity trials will

be presented.

II. Historical Background

A. Comparison of Indiana Code

Section 31-6-6.1-8 to its Predecessor Statutes

1. The 1953 S^a^^^^e. — Historically, Indiana paternity statutes
have reflected scientific trends in blood grouping and tissue testing.

In 1953, the Indiana Legislature enacted a statute which allowed

blood tests to be received into evidence only to show that the accused
man could not be the father.'^ The three standard blood tests used at
this time were based on red blood cell groupings,*' and when used
together, they enabled a falsely accused man to exclude himself from

'^Krause, supra note 5, at 261.

"Id.

'*Id.

'"See IND. Code § 31-6-6.1-8 (Supp. 1980).

'"Act of Mar. 13, 1953. Ch. 161, 1953 Ind. Acts .575 (codified at Ind. Code § 34-3-3-1

(1976) (repealed by Act of March 10, 1978, Pub. L. No. 136, § 57, 1980 Ind. Acts 1196)).

The tests were used only "to determine whether or not the defendant [could] be ex-

cluded as being the father of the child, and the results of such tests [might] be received

in evidence, but only in cases where definite exclusion [was] established." Ind. Code §
34-3-3-3 (1976) (repealed by Act of March 10, 1978, Pub. L. No. 136, § 57, 1980 Ind. Acts

1196).

"C. McCoRMiCK. The Law of Evidence. § 211 at 517-23 (2d ed. 1972). The red
blood cell groupings were the ABO, MN, and Rh-Hr. Id.



1981] HLA TESTS 835

fatherhood about fifty-one percent of the time.'* The courts successfully
merged this medical knowledge into the legal sphere; blood tests were
admissible into evidence to establish conclusive proof of nonpaternity.''
In Beck v. Beck,^" the Indiana Court of Appeals said:

"If the negative fact [of paternity] is established [scienti-

fically] it is evident that there is a great miscarriage of jus-

tice to permit juries to hold on the basis of oral testimony,

passion or sympathy, that the person charged is the father

and is responsible for the support of the child and other in-

cidents of paternity."

When medical science has perfected certain tests to the
point where it can be said with almost medical certainty that
something is a fact, the court should not hide in the dark

ages and be bound by archaic rules which subvert the truth

and impede the sound administration of justice.^'

The Beck court clearly accepted the validity and accuracy of the
blood tests. However, although the test results were conclusive in

excluding a falsely accused man as the father, they were in-
conclusive in establishing that a particular male was actually the
father.

^^

''Id. at 519.

"See, e.g., Beck v. Beck, 159 Ind. App. 20, 304 N.E.2d 541 (1973). The court in

Beck held that admissibility of blood group test results to establish nonpaternity is

conditioned upon a showing that the results of the test exclude paternity. See also

L.F.R. V. R.A.R.. 370 N.E.2d 936 (Ind. Ct. App. 1977), vacated, 378 N.E.2d 855 (Ind.

1978); A-.B-. v. C-.D-., 150 Ind. App. 535, 277 N.E.2d 599 (1971) (the court held
that medical evidence showing nonpaternity could not rebut the persumption of

legitimacy absent a showing that the tests involved were accurate. Id. at 564, 277

N.E.2d at 619).

^159 Ind. App. 20, 304 N.E.2d 541 (1973).

^7d. at 26, 304 N.E.2d at 545 (quoting the prefatory note to the Uniform Act on

Blood Tests to Determine Paternity, 9 U.L.A. 102 (1957)). The Beck court, in holding

that the blood tests should conclusively establish nonpaternity, remedied the un-

justness inherent in allowing the trier of fact to rule for the plaintiff in a paternity ac-

tion where the blood tests showed the impossibility of the defendant being the father

of the child. See Arais v. Kalensnikoff, 10 Cal. 2d 428, 74 P.2d 1043 (1937) & Berry v.
Chaplin, 74 Cal. App. 2d 652, 169 P.2d 442 (1946) (juries were permitted to find men to
be the fathers despite medical evidence to the contrary).

"159 Ind. App. at 24-25, 304 N.E.2d at 544. Probable reasons for this result are

the inconclusiveness of only 50% to 60% probability of paternity establishable under
the existing blood tests, see Cramer v. Morrison, 88 Cal. App. 3d 873, 878, 153 Cal.

Rptr. 865, 867 (1979), and the possibility that the jury might misinterpret and give un-

due weight to these statistics. See C. McCormick, supra note 17, § 211 at 522. For

these reasons courts determine that the prejudice would greatly outweigh the pro-

bative value of such evidence. See id.



836 INDIANA LAW REVIEW [Vol. 14:831

2. The 1979 Revision. — After Indiana Code section 34-3-3-1 was
repealed in 1978,^^ the Indiana Legislature in 1979 enacted Public

Law Number 277 which states: "Upon the motion of any party, the
court shall order all of the parties to the action to undergo either a

blood grouping test or a Human Leukocyte Antigen (HLA) tissue
test. The tests shall be performed by a qualified expert approved by
the court."^" The legislature, while apparently recognizing the value
and reliability of HLA tests in establishing paternity, failed to men-
tion the evidentiary value of such tests. Therefore, it was unclear
whether the tests were to be used to establish paternity as well as
nonpaternity. Moreover, the legislature was silent with respect to
integration of these scientific breakthroughs into the fact-finding

process, especially in view of the usual time lag between scientific
discovery and legal recognition.^''

3. The 1980 Amendment. — Hhe legislature in 1980 amended In-
diana Code section 31-6-6.1-8 to liberalize the admissibility of HLA
test results.^® The statute now reads in pertinent part: "[T]he results
of the tests may be received in evidence."^^ The amendment is again,
however, highly ambiguous. It neither specifies whether the tests

are to be used to demonstrate paternity in addition to nonpaternity,

nor does it specify the weight to be accorded such evidence.

Although progressive in adapting medical advancements in the area

of paternity testing to rules of evidence, the Indiana legislature left

the judiciary the task of insuring that this scientific evidence is fair-

ly and efficiently applied in the paternity proceeding. It left signifi-

cant discretion to the courts in various matters, such as (1) demon-

stration that these new tests are reliable and have received general
acceptance in the scientific community;^* (2) evaluation of whether

the evidence is of sufficient probative value on the issue of paternity

to outweigh the possible danger of its misuse; (3) determination of

the proper function of scientific evidence at trial;^' and (4) ad-

'=IND. Code § 34-3-3-1 (1976) (repealed by Act of Mar. 10, 1978, Pub. L. No. 136. §
57. 1978 Ind. Acts 1196).

''Act of Apr. 10, 1979. Pub. L. No. 277. § 1. 1979 Ind. Acts 1446 (currently

codified at Ind. Code § 31-6-6.1-8 (Supp. 1980)).

"See Shaw & Kass. supra note 5. at 51.
''Act of Feb. 27, 1980, Pub. L. No. 183, § 5, 1980 Ind. Acts 1595 (amending Ind.

Code § 31-6-6.1-8 (1979)).

"Ind. Code § 31-6-6.1-8 (1980) (emphasis added).

''See, e.g., A-.B-. v. C-.D-., 150 Ind. App. 535, 564-65. 277 N.E.2d 599. 619
(1971). The court in this case held that, before blood tests can conclusively establish

nonpaternity, the accuracy of the particular test method must first be demonstrated.

This principle will be more fully developed in the subsequent discussion.

''Professor Jaffee, for example, advocates that scientific proof should be severely

limited at trial. Jaffee, Comment on the Judicial Use of HLA Paternity Test Results



1981] HLA TESTS 837

ministration of proper jury instructions in order to assure the cor-

rect interpretation and application of the blood and tissue test

results in conjunction with other circumstantial evidence conven-

tionally used in paternity trials.™

B. Section 31-6-6.1-8 Compared with the Uniform Acts on Paternity

Compared with other jurisdictions, Indiana is remarkably pro-
gressive in revising its rules of evidence in paternity proceedings to

conform with modern medical advancements in the area of paternity
testing. Arguably, the ambiguity of the 1980 amendment to section
31-6-6.1-8 allows for utilization of blood and tissue test results as

evidence to indicate paternity probability; if so, this would be a
significant departure from prior Indiana practice.

Various Uniform Acts provide for the admission of blood test

results as relevant evidence in the determination of paternity.^' Oc-

cassionally, these Acts give greater weight to the results of blood

tests than have the courts.^^ Section four of the Uniform Act on

Blood Tests to Determine Paternity^^ makes test results conclusive

and Other Statistical Evidence: A Response to Terasaki, 17 J. Fam. L. 457
(1979). Jaffee feels that HLA test results estimating probability of paternity are legally
inappropriate as "independent, main-case, direct examination evidence on an ultimate

issue of paternity." Id. at 484. They would be performing a legitimate function at trial,

however, "where they appear merely as part of the basis of an otherwise admissible

expert opinion, where they are directed merely at issues of secondary, basic fact, or, in

any event, where they function merely as impeachment, contradiction, or rehabilitation

or secondary corroboration." Id. at 476.

^Examples of other such evidence include: (1) evidence of sexual intercourse be-

tween the mother and alleged father during the possible conception period; (2) an ex-

pert's opinion concerning the probability of the alleged father's paternity based upon

the duration of the mother's pregnancy; and (3) the practice of comparing the child's

resemblance to that of the putative father. See Uniform Parentage Act § 12; Krause,
supra note 2, at 272.

^^E.g., Uniform Act on Blood Tests to Determine Paternity §§ 1-2,4; Uniform
Act on Paternity §§ 7-8,10; Uniform Parentage Act § 12.

^^See Uniform Act on Blood Tests to Determine Parternity §§ 7-8,10; Uniform
Parentage Act § 12. Test results for the purpose of showing nonpaternity are now
widely received in evidence. See, e.g.. Beach v. Beach, 114 F.2d 479 (D.C. Cir. 1940);

Beck V. Beck, 159 Ind. App. 20, 304 N.E.2d 514 (1973); Cortese v. Cortese, 10 N.J.

Super. 152, 76 A.2d 717 (1950); C. v. C, 200 Misc. 631, 109 N.Y.S.2d 276 (Sup. Ct. 1951);

State V. Camp, 286 N.C. 148, 209 S.E.2d 754 (1974); Commonwealth v. Zammarelli, 17

Pa. D. & C. 229 (Fayette County Ct. Quarter Sess., 1931). Few jurisdictions have,
however, allowed test results in for the purpose of showing the likelihood of paternity.

See, e.g., Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979); Carlyon v.

Weeks, 387 So. 2d 465 (Fla. Dist. Ct. App. 1980); Malvasi v. Malvasi, 167 N.J. Super.

513, 401 A.2d 279 (1979).

'^Uniform Act on Blood Tests to Determine Paternity § 4. This legislation,
drafted in response to the unscientific decisions in Arais v. Kalensnikoff, 10 Cal. 2d

428. 74 P.2d 1043 (1937) and Barry v. Chaplain, 74 Cal. App. 2d 652, 769 P.2d 442 (1946),



838 INDIANA LAW REVIEW [Vol. 14:831

on nonpaternity and opens the door for the affirmative use of blood

test evidence to estimate parentage. The Commissioners' Prefatory
Note^"* explains that the Act was drawn not only to insure that ac-
curate test results establishing exclusion be entitled to conclusive

weight but also to permit admissibility in the court's discretion of

evidence tending to prove paternity. Section four concludes, "If the

experts conclude that the blood tests show the possibility of the
alleged father's paternity, admission of this evidence is within the

discretion of the court, depending upon the infrequency of the blood

type."^^ By conditioning the admissibility of probability statements
"on the infrequency of the blood type,"^** the Act integrates ad-

vancements of science into the legal process.^^

A minority of states have adopted either the Uniform Act on
Blood Tests to Determine Paternity''* or the Uniform Act on Pater-

nity.^' A third act, the Uniform Parentage Act, has also been
adopted in a minority of jurisdictions."" This Act provides for more
liberal admissibility of medical evidence:

Evidence relating to paternity may include:

(3) blood test results, weighted in accordance with evidence,

sets out procedures for ordering the tests, selecting experts, and giving effect to the

test results.

^^9 U.L.A. 102. 103-04 (1957).

''Uniform Act on Blood Tests to Determine Paternity § 4.

''As discussed in note 11 supra, new blood typing systems and identification of in-
creasing numbers of antigen markers increase the rarity of a particular blood group

combination.

^See 9A U.L.A. 102, 102 (1957) (prefatory note). The following are among the
enacted versions of the Uniform Act on Blood Tests to Determine Paternity: Cal.
EviD. Code §§ 890-897 (West 1966) (omitting last sentence of Section 4); N.H. Rev.

Stat. Ann. §§ 522:1-10 (1955); Okla. Stat. Ann. tit. 10, §§ 501-508 (West Supp. 1980);

Utah Code Ann. §§ 78-45a-7 to -17 (1977).
''See 9A U.L.A. 623, 623 (1979) (prefatory note). The following are enacted ver-

sions of the Uniform Act on Paternity: Ky. Rev. Stat. §§ 406.01 1-.180 (1972 & Supp.
1980); Me. Rev. Stat. Ann. tit. 19, §§ 271-287 (1981); Miss. Code Ann. §§ 93-9-1 to -75

(1972); N.H. Rev.Stat. Ann. §§ 168-A:1 to A:12 (1955) (omitting section 10); Utah Code
Ann. §§ 78-45a-l to -17 (1977). Sections 7-10 of the Uniform Act on Paternity were
taken, with minimal adjustments, from the Uniform Act on Blood Tests to Deter-
mine Paternity §§ 1-4. 9A U.L.A. 623, 634 (1979).

"See 9A U.L.A. 579, 579 (1979) (prefatory note). The following are enacted ver-
sions of the Uniform Parentage Act: Cal. Civil Code §§ 7000-7021 (West Supp. 1981);

Colo. Rev. Stat. §§ 19-6-101 to -129 (1973); Haw. Rev. Stat. §§ 584-1 to -26 (1976);
Mont. Rev. Codes Ann. §§ 61-301 to -334 (Supp. 1977); N.D. Cent. Code §§ 14-17-01 to
-26 (Supp. 1977); Wash. Rev. Code §§ 26.26.010 to .905 (Supp. 1980); Wyo. Stat. §§
14-2-101 to -120 (1978).



1981] HLA TESTS 839

if available, of the statistical probability of the alleged

father's paternity;

(4) medical or anthropological evidence relating to the alleged

father's paternity of the child based on tests performed by

experts. . . . ; and

(5) all other evidence relevant to the issue of paternity of the

child."

Although the use of statistics bearing on the probability of

paternity is allowed in the Uniform Act on Parentage and arguably

is allowed in the court's discretion under the Uniform Act on Pater-

nity and the Uniform Act on Blood Tests to Determine Paternity,

the Joint AMA-ABA Guidelines'^ recommend that these statistics be
even more readily admitted. The Guidelines recommend:

that the National Conference of Commissioners on Uniform

State Laws develop new uniform legislation or amend the .
"Uniform Parentage Act" and the "Uniform Blood Test Act"

to . . . simplify the admissibility in evidence of test results

and the probative effect thereof, including the evidentiary

value of estimations of "likelihood of paternity."'^

By failing to specify the probative value to be given to these
blood test results, the Indiana and Uniform Acts are equally hesi-

tant in utilizing statistics to estimate the likelihood of paternity, as

opposed to nonpaternity. As a result, courts must fashion standards
for admission of blood test results into evidence for this purpose.

III. General Requirements for Admission of Evidence

A. Logical and Legal Relevancy

Admission of evidence necessarily requires a balancing of the

conflicting requirements of logical and legal relevancy ,'' or in other

words, the weighing of the probative value of such evidence and the

dangers inherent in its application.

L Logical Relevancy . — AW evidence must meet a minimum
standard of relevancy of probative quality in order to be admitted.''^

Evidence is "relevant" if, in the light of general experience, it

logically tends to prove or disprove some issue or fact material to

^'Uniform Parentage Act § 12.
"AMA-ABA Guidelines, supra note 11.
"Id. at 283.

"For a thorough discussion of logical and legal relevancy, see C. McCoRMiCK,

supra note 17. §§ 184-185.

"M § 184.



840 INDIANA LAW REVIEW [Vol. 14:831

the controversy."^ The general standard for the admissibility of
evidence as relevant is that "it makes the sought-for inference more
probable than it would be without the evidence. Accordingly,

evidence may be found relevant although its ability to persuade is
extremely light.""

Those advocating the use of HLA test results to prove probability
of paternity draw their arguments from the premise of "logical
relevancy.""* The test results are used as circumstantial evidence to
prove the fact of paternity, and because HLA tests are highly ac-
curate in establishing paternity, the results of the test are clearly

probative and therefore logically relevant in an action to establish

paternity. Proponents argue that admissibility of scientific evidence

advances the accuracy and fairness of the fact-finding process

because the evidence assists the trier of fact in resolving the issue

of paternity with more precision than would some of the more con-
ventional evidence,"^ such as whether the putative father had access

to the mother during the period of conception.^"

2. Legal i?e/efawe?/. — Although HLA tissue typing results are
highly probative relevant evidence and therefore prima facie ad-

missible, a trial judge may use his discretion to reject this evidence
if there are counterbalancing factors outweighing its probative

value.'^' The process of excluding probative evidence because of cer-
tain risks inherent in its application is known as "legal relevancy."''^
Counterbalancing factors which may outweigh the probative value
of the evidence include:

First, the danger that the facts offered may unduly arouse •
the jury's emotions of prejudice, hostility or sympathy. Sec-

ond, the probability that the proof and the answering

^Vd § 185. Several recent Indiana courts have defined relevancy as the "logical

tendency of evidence to prove a material fact." Lake County Council v. Arrendondo,

266 Ind. 318, 321, 363 N.E.2d 218. 220 (1977); Indiana Nat'l Corp. v. FACO, Inc., 400
N.E.2d 202, 206 (Ind. Ct. App. 1980); Hedges v. Public Serv. Co., 396 N.E.2d 933, 937

(Ind. Ct. App. 1979).

"Smith V. Crouse-Hinds Co., 373 N.E.2d 923, 926 (Ind. Ct. App. 1978), transfer

denied, 392 N.E.2d 1168 (Ind. 1979).

^"See, e.g., S. SCHATKIN. supra note 11, at §§ 8.06-.14; AMA-ABA Guidelines,
supra note 11; Chakrabortz, Shaw & Schull, Exclusion of Paternity: The Current State
of the Art, 26 Am. J. of Human Genetics 477 (1974); Krause, supra note 5; Lee, supra
note 11; Salisbury, The Use of Blood Test Evidence in Paternity Suits: A Scientific
and Legal Analysis, 30 Faculty L. Rev. 47 (1972); Shaw & Kass, supra note 5.

"See authorities cited in note 48 supra.

^"See, e.g., Collins v. Wise, 156 Ind. App. 424, 296 N.E.2d 887 (1973); Kintz v.

State, 71 Ind. App. 225, 124 N.E. 739 (1919); Gemmill v. State, 16 Ind. App. 154, 43

N.E. 909 (1896).

'^'Smith V. Crouse-Hinds Co., 373 N.E.2d 923, 926 (Ind. Ct. App. 1978).

''See C. McCORMiCK, supra note 17, § 185 at 440-41.



1981] HLA TESTS 841

evidence that it provokes may create a side issue that will
unduly distract the jury from the main issues. Third, the

likelihood that the evidence offered and the counter proof

will consume an undue amount of time. Fourth, the danger of

unfair surprise to the opponent when, having no reasonable

ground to anticipate this development of the proof,

he would be unprepared to meet it.^'

A fifth counterbalancing factor which opponents of nonexclusionary
HLA results propose is the danger that the evidence will confuse or
mislead the jury.^^ These objections are inherent in the use of scien-

tific evidence at trial.^^ Because of the technical nature of the

evidence and the degree of certainty and infallibility suggested by

scientific data in general, there is a danger that the jury may attach
exaggerated significance to the test results.^** Instead of using the

data to corroborate the nonscientific proof of paternity, the jury

could be so influenced by the scientific data that it would ignore

more conventional evidence. With HLA test results, statistics would
no doubt show a very high degree of probability, and the jury might
consider that they alone would suffice to meet the "preponderance
of the evidence" standard which is required in paternity actions."

B. General Admissibility of New Scientific Evidence

Evaluation of the propriety of admitting nonexclusionary test

results is closely linked to factors involved in accepting any new
scientific technique or discovery as evidence. Because of the

"misleading aura of certainty which often envelops a new scientific
process, obscuring its currently experimental nature,"^* courts have

''Id. at 439-40. Accord, Smith v. Crouse-Hinds Co., 373 N.E.2d at 926 (listing the
identical factors).

''Smith V. Crouse-Hinds Co., 373 N.E.2d at 926. See also State v. Ingram, 399
N.E.2d 808 (Ind. Ct. App. 1980); Walters v. Kellam & Foley, 172 Ind. App. 207, 360
N.E.2d 199 (1977).

''See C. McCoRMiCK, supra note 17, § 202.
"See United States v. Bailer, 519 F.2d 463, 465 (4th Cir. 1975); United States v.

Addison, 498 F.2d 741, 744 (D.C. Cir. 1974); People v. Kelly, 17 Cal. 3d 24, 31-32, 549

P.2d 1240, 1245, 130 Cal. Rptr. 144, 149 (1976); Huntingdon v. Crowley, 64 Cal. 2d 647,
656, 414 P.2d 382, 390, 51 Cal. Rptr. 254, 262 (1966).

"Collins V. Wise, 156 Ind. App. at 426, 296 N.E.2d at 889; Cohen v. Burns, 149
Ind. App. 604, 606, 274 N.E.2d 283, 284 (1971). See Ellman & Kaye, Probabilities and
Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L. Rev. 1131,
1159 (1979).

'^Huntingdon v. Crowley, 64 Cal. 2d at 656, 414 P.2d at 390, 51 Cal. Rptr. at 262

(1966). See also People v. Kelly, 17 Cal. 3d at 31, 549 P.2d at 1245, 130 Cal. Rptr. at
149, in which the court warned that admission of evidence based on new scientific prin-
ciples warrants thorough judicial consideration: "Several reasons founded in logic and
common sense support a posture of judicial caution in this area. Lay jurors tend to



842 INDIANA LAW REVIEW [Vol. 14:831

deliberately and cautiously retarded the admission of evidence born

of new techniques until the "scientific community has had ample op-
portunity to study, evaluate and accept its reliability."*^^ Hence,

there is generally a considerable lag between scientific advances and
their acceptance as evidence in a legal proceeding.""

1. Acceptance by the Relevant Scientific Community. — The
most crucial factor in the decision to admit new scientific evidence is
whether it has been "sufficiently established to have gained general
acceptance in the particular field in which it belongs" as required by
the landmark case of Frye v. United States.^^ Several other courts
have accepted the Frye test in determining the underlying reliabil-
ity of a new scientific technique."^ The Frye test requires that when
faced with a novel method of proof, expert testimony is usually re-
quired to establish the validity of the technique and its general ac-
ceptance in the relevant scientific community."^ Not only must the

give considerable weight to 'scientific' evidence when presented by 'experts' with im-

pressive credentials."

^'People V. Kelly, 17 Cal. 3d at 41, 549 P.2d at 1251, 130 Cal. Rptr. at 155 (citation

omitted). The Kelly court explained this proposition further:

Ideally, resolution of the general acceptance issue would require considera-

tion of the views of a typical cross-section of the scientific community, in-

cluding representatives, if there are such, of those who oppose or question
the new technique.

. . . [T]rial courts should take affirmative steps to assure that an ac-

curate description of the [relevant] scientific community is present before the

court. . . . "The court should then make an effort to ascertain the extent of

any opposition so identified . . . ."

Id. at 37, 549 P.2d at 1248-49, 130 Cal. Rptr. at 152-53 (quoting Comment, The

Voiceprint Dilemma: Should Voices be Seen and not Heard?, 35 Md. L. Rev. 267, 293

(1975)). See also Strong, Questions Affecting the Admissibility of Scientific Evidence,

1970 U. III. L.F. 1, 16-17.

'"People v. Kelly, 17 Cal. 3d at 31-32, 549 P.2d at 1245, 130 Cal. Rptr. at 149; Peo-

ple V. Spigno, 156 Cal. App. 2d 279, 289, 319 P.2d 458, 464 (1957).

"293 F. 1013, 1014 (D.C. Cir. 1923) (dealing with acceptance of lie-detector tests as

scientific evidence). See Phillips v. Jackson, 615 P.2d 1228, 1233 (Utah 1980)

(characterising the Frye test as the "most widely used standard").

^'See, e.g., United States v. Bailer, 519 F.2d 463 (4th Cir.), cert, denied, 423 U.S.

1019 (1975) (dealing with voice spectrogram analysis to identify a speaker); United

States V. Stifel, 433 F.2d 463 (6th Cir. 1970), cert, denied, 401 U.S. 994 (1971) (dealing

with neutron activation analysis of bomb package fragments); People v. Kelly, 17 Cal.
3d 24, 549 P.2d 1240, 130 Cal. Rptr. 144 (1976) (dealing with use of spectrograms to

analyze voice prints); People v. Williams, 164 Cal. App. 2d 858, 331 P.2d 251 (1958)

(dealing with use of Nalline tests to detect the presence of narcotics in a person's

body).

"'See, e.g.. United States v. Bailer, 519 F.2d 463 (4th Cir.), cert, denied, 423 U.S.

1019 (1975). A less rigorous evidentiary foundation was required in McKay v. State,
155 Tex. Crim. 416, 235 S.W.2d 173 (1951) (lack of unanimity of support goes only to

the weight of the evidence).



1981] HLA TESTS 843

expert witness be properly qualified to give an opinion on the sub-

ject,®" but he must establish that some scientific profession "has put
the principle to some use of its own, thus affording a thorough em-
pirical testing of the principle."*^ The principle must have gained ac-
ceptance as a working tool in the particular field which exper-

imented with it.®* "The requirement of general acceptance in the
scientific community assures that those most qualified to assess the
general validity of a scientific method will have the determinative
voice."®^ Additionally, the Frye requirement assures the existence of

a minimal reserve of experts who can critically evaluate the novel
technique as applied in a particular case, expose the limitations of

the new theory, and impartially assess the position of the scientific
community.**

2. Validity and Reliability of the Test Results. — An adequate
foundation for the tests is crucial to prevent deception and misap-

plication of the theory; however, several courts have argued that

any criticism of the developments should go to the weight of the

evidence and not to its admissibility.®^ The court in United States v.
Stifef said that absolute certainty of result or unanimity of scien-

tific opinion is not required for admissibility:

[N]either newness nor lack of absolute certainty in a test suf-

"^See, United States v. Stifel, 433 F.2d at 438; People v. Kelly. 17 Cal. 3d at 30-31,

549 P.2d at 1244, 130 Cal. Rptr. at 148; Jones, Danger— Voiceprints Ahead, 11 Am.
Crim. L. Rev. 549, 554 (1973); Strong, supra note 59, at 16. The expert's qualifications

need to be established; furthermore, he must testify only as to areas within his

demonstrated competence. Id. at 9-10. A sufficient foundation must also be laid con-
cerning the application "of a scientific method, test, or process on a particular occa-

sion. " Id. at 20 (emphasis added). The proponent of the evidence must demonstrate

that correct scientific procedures were used in the particular case. Id. at 18-22. In

United States v. Bailer, 519 F.2d at 467, the court upheld a jury instruction warning

the jurors to disregard the expert's testimony "if they decided his opinion was not based

on adequate education or experience." But see. People v. Williams, 164 Cal. App. 2d at

860-62, 331 P.2d at 253-54 (the court stated that despite the fact that the expert

witness had no personal knowledge of the drug used, the drug's general acceptance in

the community overcame this problem).

''Strong, supra note 59, at 12. See also People v. Kelly, 17 Cal. 3d at 30-31, 549

P.2d at 1244, 130 Cal. Rptr. at 148; Huntingdon v. Crowley, 64 Cal. 2d 647, 414 P.2d

382, 51 Cal. Rptr. 254 (1966).

''Strong, supra note 59, at 12.

"United States v. Addison. 498 F.2d 741, 743-44 (D.C. Cir. 1974).

"/d.; United States v. Bailer, 519 F.2d at 465; People v. Kelly, 17 Cal. 3d at 30-32,

37-38, 549 P.2d at 1244-45, 1248-49, 130 Cal. Rptr. at 148-49, 152-53.

"United States v. Franks, 511 F.2d 25, 33-34 (6th Cir.), cert, denied, 422 U.S. 1042

(1975); United States v. Stifel, 433 F.2d 431, 438 (6th Cir. 1970), cert, denied, 401 U.S.

994 (1971); People v. Kelly. 17 Cal. 3d 24, 31. 549 P.2d 1240, 1244, 130 Cal. Rptr. 144,

148 (1976); McKay v. State, 155 Tex. Crim. 416, 235 S.W.2d 173 (1951).
™433 F.2d 431, 438 (6th Cir. 1970), cert, denied, 401 U.S. 944 (1971).



844 INDIANA LAW REVIEW [Vol. 14:831

fices to render it inadmissible in court. Every useful new
development must have its first day in court. And court
records are full of the conflicting opinions of doctors,

engineers and accountants, to name just a few of the legions
of expert witnesses.^^

Therefore, those opposing the admissibility of scientific tests can

direct their criticism toward the weight given to such evidence.

Although the trial judge initially has a large measure of discretion

in admitting or refusing to admit evidence based on scientific pro-

cesses, the jury must weigh the credibility of the expert's testimony

after full consideration of its value and imperfections.^^ Indiana case

law also supports admission of relevant evidence without regard to

its weight or sufficiency." In dealing with the admissibility of expert

testimony the Fourth Circuit Court of Appeals in United States v.

Bailer^'* stated:

In order to prevent deception or mistake and to allow the

possibility of effective response, there must be a demon-

strable, objective procedure for reaching the opinion and

qualified persons who can either duplicate the result or
criticize the means by which it was reached, drawing their
own conclusions from the underlying facts.

Unless an exaggerated popular opinion of the accuracy of a

particular technique makes its use prejudicial or likely to

mislead the jury, it is better to admit relevant scientific

evidence in the same manner as other expert testimony and
allow its weight to be attacked by cross-examination and

refutation.^^

Scientific evidence is particularly useful as a fact-finding tool if a

proper evidentiary foundation has been laid; it is equally important,

especially where mathematical probability or statistics are used, to
ensure that data concerning the frequency of occurrence of certain

events can be "subsequently and independently empirically
verified."^" This requirement of subsequent independent verification

for the purpose of "either duplicat[ing] the result or criticiz[ing] the

''Id. Accord, State v. Johnson, 42 N.J. 146, 171, 199 A.2d 809. 823 (1964); Strong,

supra note 59, at 11.

"See note 69 supra.

''See Harbor v. Morgan, 4 Ind. 158 (1853).
'"519 F.2d 463, 465 (4th Cir.), cert, denied, 423 U.S. 1019 (1975).

''Id. at 466.

"Liddle, Mathematical and Statistical Probability As a Test of Circumstantial
Evidence, 19 Case W. Res. L. Rev. 254, 276 (1968).



1981] HLA TESTS 845

means by which it was reached"" is also a guarantee that correct
scientific procedures were used in the particular case.'* Therefore, in

order to meet the requirements of admissibility, the expert testi-

mony must establish that the newly developed scientific process is
founded on tangible demonstrative premises; such evidence must

not be accepted unless there is an assurance that the tests have

been conducted in accordance with the highest standards of care.

C. Admission of HLA Test Results as New Scientific Evidence

The revolution in paternity testing brought about by ad-
vancements in HLA tissue typing has induced the writing of various
scientific and legal articles on the subject. Several of these authorities,

in advocating the use of the test results as evidence of positive proof of

paternity, have demonstrated the conformity of the HLA test methods
with principles concerning admissibility of new scientific techniques.'"

1. Acceptance of HLA Testing by the Scientific Com-
munity.— Support for the view that the scientific community has ac-
cepted HLA test results as a reliable predictor of paternity can be
found from a number of sources. An overview of various scientific
and legal articles illustrates the general awareness of and accep-

tance by the relevant scientific community of HLA testing as a
reliable predictor of paternity.*" The substantial weight of medical
and legal authority attests to their accuracy and value.*' In addition,

a number of courts have already found that HLA results satisfy the
Frye test.*^ This requirement is also demonstrated by the
widespread use of HLA testing in areas of medical science other
than paternity testing, namely in kidney or other organ transplants
and in the diagnosis of certain diseases.*^

"United States v. Bailer, 519 F.2d at 466.

'*See note 64 supra.

"See, e.g., S. Schatkin, supra note 11, §§ 8.06-.14; AMA-ABA Guidelines, supra
note 11; Chakrabortz, Shaw & Schull, supra note 48; Ellman & Kaye, supra note 57;
Krause, supra note 5; Lee, supra note 11; Salisbury, supra note 48; Shaw & Kass,
supra note 5; Sterlek & Jacobson, Paternity Testing with the Human Leukocyte An-
tigen System: A Medicolegal Breakthrough, 20 Santa Clara L. Rev. 511 (1980);
Terasaki, supra note 11.

'"See note 79 supra.

"Id.

''See e.g., County of Fresno v. Superior Court, 92 Cal. App. 3d 133, 136-38, 154

Cal. Rptr. 660, 662-63 (1979); Cramer v. Morrison, 88 Cal. App. 2d 873, 153 Cal. Rptr.

865 (1979); Malvasi v. Malvasi, 167 N.J. Super. 513, 401 A.2d 279 (1979).

'^AMA-ABA Guidelines, supra note 11, at 272-76. The HLA test has gained
widespread acceptance for use in kidney transplants in the United States and Europe.

Cramer v. Morrison, 88 Cal. App. 3d 873, 878, 153 Cal. Rptr. 865, 867 (1979); Terasaki



846 INDIANA LAW REVIEW [Vol. 14:831

Finally, the widespread acceptance of serologic data in the

estimation of likelihood of paternity is further documented by the

European practice of admitting blood group evidence showing the
probability that a named man is the father of a given child.**" Euro-
pean laboratories have developed complex blood typing systems as

well as safety procedures which assure accuracy of their results.

The test results are reported to the court only if the probability is
significantly high, above ninety-five percent, or significantly low,

less than five percent.*' Therefore, at the outer limits, this approach

produces de facto inclusions or exclusions.**^ At the very least, it pro-

duces valuable circumstantial evidence. There is a general consensus

among authorities*' throughout the United States and Europe that
HLA tissue typing is an accurate indicator of paternity exclusion
and a reliable predictor of paternity inclusion. Thus, HLA typing
has met one of the requirements for the admissibility of new scien-
tific evidence — it is a practical working tool in a scientific field.

2. Validity and Reliability of HLA Test i?esM/^s. — Likelihood of
paternity must be calculated using probability factors. In HLA
tissue typing, calculations of the probability that a mating of the

known mother and a particular nonexcluded putative father would
produce a child with the genetic markers in question are based on
gene frequencies in a given population.** "Probabilities are assigned

to the various possible genotypes using population statistics and

then all possible combinations are considered in the calculation."*^

Ordinarily, the nonexcluded putative father is compared to a random
man.^° The probability that a mating of the mother with a randomly
chosen man would produce a child with the genetic markers in ques-
tion can also be calculated from the frequency of the markers in the

& Mickey, Histocompatibility— Transplant Correlation, Reproducibility, and New
Matching Methods, 3 Transplantation Proc. 1057 (1971). "Progress in HLA typing is
very rapid, principally because of the clinical importance of HLA. Survival of
transplanted organs depends to a large extent on HLA compatability between the
donor and recipient, ... so there is great pressure to improve the efficacy [of] HLA
typing." S. SCHATKIN, supra note 11, § 8.08 at 8-23.

'*AMA-ABA Guidelines, supra note 11, at 252, 260-63; Chakrabortz, Shaw &
Schull, supra note 48, at 477; Lee, supra note 11, at 616; Terasaki, supra note 11, at

544. The procedure of computing likelihood of paternity is currently practiced by na-

tional blood typing facilities in Oslo, Copenhagen, and Stockholm; gi'eat expertise has

developed over several decades. Uniform Parentage Act § 12, Comment.

'^See Uniform Parentage Act § 12, Comment; Krause, The Uniform Parentage

Act, 8 Fam. L.Q. 1. 10-11 (1974).

'^Uniform Parentage Act § 12, Comment.
'''See note 79 supra.

""Terasaki, supra note 11, at 549.



1981] HLA TESTS 847

general population.^' The "blood group paternity index,"'^ by which

the "probability of paternity for the putative father" is estimated, is

equivalent to "the ratio of his probability to the sum of the prob-
abilities for both men,"^^ both the putative father and the random
hypothetical man.

Because HLA probability statistics are founded on objective em-
pirically established data, they provide precise, reliable, mathematical

conclusions and are not prone to the defects inherent in the type of

mathematical probability used in the famous case oi People v. Collins.^^

In Collins, the expert witness did not present "any statistical evidence

whatsoever in support of the probabilities for the factors selected";'^

because the validity of the estimates had not been demonstrated, the

mathematical probability statistics were not admissible as evidence to
identify a defendant.'**

The HLA interpretations are not based on arbitrarily assigned
probability values, as in Collins, or on a statistical theory unsupported

by the evidence. Instead, they are based on objectively ascertainable

data capable of being reproduced and a statistical theory founded on

extensive scientific research and experimentation. When a scientific

"/d. The following articles provide a detailed, scientific coverage of how to
calculate these probabilities: AMA-ABA Guidelines, supra note 11, at 262; Lee, supra
note 11, at 630-33. Accord, Uniform Parentage Act § 12, Comment.

'^Uniform Parentage Act § 12, Comment at 604.
''Terasaki, supra note 11, at 549. Terasaki modifies this premise even further:

This paternity probability is a measure of likelihood based solely on serologic

information apart from any nongenetic evidence for or against paternity. It
should be noted that such analysis is not meaningful in distinguishing between

two related, nonexcluded putative fathers. The most extreme example is
identical twins, for whom all genetic markers are the same.

Id.

''68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968). In this case, a mathemati-

cian was asked to testify as to the probability that a couple other than the defendants

(man and woman with special characteristics) could be the culprits in the charged rob-
bery. He testified that the probability was astronomically small (1/12,000,000). The
Supreme Court of California held that, although there was a proper role for prob-
abilistic evidence in the trial process, the evidence in the particular case was unduly

prejudicial because of the invalidity of the evidentiary foundation upon which the prob-

abilities were based. Id. at 327-29, 438 P.2d at 38-39, 66 Cal. Rptr. at 502-03. The Col-

lins court concluded that this "trial by mathematics" so distorted the jury's role and so

disadvantaged defense counsel as to constitute a miscarriage of justice. Id. at 332, 438

P.2d at 41, 66 Cal. Rptr. at 505.

For a more extensive analysis of the Collins case, see Cullison, Identification by

Probabilities and Trial by Arithmetic (A Lesson for Beginners in How to be Wrong
with Greater Precision), 6 Hous. L. Rev. 471, 475-77 (1969); Jaffee, supra note 29, at

471-75; Liddle, supra note 76, at 264-65, 270-73; Tribe, Trial by Mathematics: Precision

and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1334-38 (1971).

'Teople V. Collins, 68 Cal. 2d at 325, 438 P.2d at 36, 66 Cal. Rptr. at 500.

»7d. at 327-29, 438 P.2d at 38-39, 66 Cal. Rptr. at 502-03.



848 INDIANA LAW REVIEW [Vol. 14:831

technique "is susceptible to subsequent verification, sophisticated

devices are available for measuring or counting the frequency of occur-

rence of that event, and reliable probabilities may be empirically
assigned by experts" in the area.^^ Requiring two or more laboratory
determinations of the estimation of paternity would be an effective

safeguard against possible errors and misapplication of the test

results.

The general acceptance of HLA tissue typing by the relevant
scientific community,^* the clinical importance of HLA testing in the
area of organ transplantation,^^ and the availability of probability

statistics which can be subsequently and independently empirically

verified'"" all point to the validity of such tests in establishing pater-

nity.

IV. Arguments Favoring the Use of HLA
Tests as Affirmative Evidence of Paternity

The introduction of HLA tissue typing has caused a revolution in
paternity testing; extensive scientific experimentation has led to the

discovery of a greater number of genetic markers and an increasing
number of blood group systems. Currently, between fifty-seven and
sixty-two tests of blood and other genetic products are capable of

establishing within approximately a ninety-nine percent probability

whether a named man is the father of a certain child.'*"

However, use of estimations based on HLA typing, like use of
other scientific evidence, requires striking a balance between the

probative worth of the evidence and its capacity to confuse or prej-

udice a jury. This function is even more essential in an era when
scientific proof "assume[s] a posture of mystic infallibility in the

eyes of a jury."'"^ Proponents of the admission of nonexclusion test

results argue that the new tests provide such a high degree of prob-

"Liddle, supra note 76, at 274.

^''See note 79 supra.

loot

"See note 83 supra.

'"See AMA-ABA Guidelines, supra note 11, at 262; Lee, supra note 11, at 630-33;
Terasaki, supra note 11, at 549.

""See Lee, supra note 11, at 616, 628; Shaw & Kass. supra note 5, at 58-59. Dr.
Lee explains that the white blood cell isoantigen (HLA) system alone provides a 76%
chance of exclusion. Lee, supra note 11, at 628. If, in addition to HLA tests, tests on
red blood cells, serum proteins, and all other known systems are included, the

cumulative chance of exclusion for the nonfather is approximately 99%. Id. Although it

is currently not practical to utilize all of these tests, many laboratories are now

capable of routinely performing tests which establish at least a 70% chance of exclu-
sion. Id. See also AMA-ABA Guidelines, supra note 11, at 252-56, 276; Terasaki, supra
note 11, at 554.

'"'United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974).



1981] HLA TESTS 849

ability that they outweigh any negative factors they may possess/"^
Although the tests do not provide a 100% certainty of paternity, the
results should be admitted as substantial probative evidence with

the expert who presents the information subject to cross-
examination.'"^ These measures of probability, properly and cautiously

applied, could give a jury a scientific basis for the determination of

paternity. "[I]n contrast to the subjective evidence upon which

paternity is now often determined, tests such as HLA typing which
generally provide high probabilities of paternity should certainly be

preferred by the courts."'"^

The evidentiary value of these estimations increases as the

percentage of probability approaches near certainty. "A particularly
high statement of probability or improbability will have as much if
not more probative force than a mere indication of probability or
even medical certainty."'"^ Probability statements that are neither

very high nor very low, such as the probabilities established by the

conventional red blood cell groupings, have only slight probative

worth which is far outweighed by the chance that a juror would be

unduly impressed by scientific evidence that he is incapable of fully

understanding or evaluating.'"' Even though nonexclusionary test
results based solely on the standard red blood cell systems are

logically relevant evidence on the issue of paternity, most courts

have excluded the test results because of their highly prejudicial ef-

fect on the putative father.'"* Likewise, the probative value of such

evidence may be outweighed by the counterbalancing factors of jury

^"^See Krause, supra note 5, at 261-63; Lee, supra note 11, at 630; Salisbury, supra
note 48, at 66-67, 73-74; Shaw & Kass, supra note 5, at 42-43, 60; Sterlek & Jacobson,
supra note 79 at 526-29; Terasaki, supra note 11, at 554.

'"^Shaw & Kass, supra note 5, at 60.
'"^Terasaki, supra note 11, at 554. See AMA-ABA Guidelines, supra note 11, at

283. The joint committee recognized the evidentiary value of probability estimations
and recommended that new uniform legislation be enacted to "simplify the admissibility
in evidence of test results and the probative effect thereof, including the evidentiary
value of estimations of 'likelihood of paternity.' " Id. See also Krause, supra note 5, at
271-72. The author comments that the practice of comparing the resemblance of the
child to the putative father had a very prejudicial effect on the jury; the jury gave con-
siderable weight to such a comparison. Id. at 272.

'""Broun & Kelly, Playing the Percentages and the Law of Evidence, 1970 U. III.
L.F. 23, 36.

""Id. at 36-38; Salisbury, supra note 48, at 66.

""Dodd v. Henkel, 84 Cal. App. 3d 604, 148 Cal. Rptr. 780 (1978); People v. Nichols,
341 Mich. 311, 67 N.W.2d 230 (1954); State ex rel. Freeman v. Morris, 156 Ohio St. 333.
102 N.E.2d 450 (1951). Contra, Livermore v. Livermore, 233 Iowa 1155, 11 N.W.2d 389
(1943). Note that these cases deal only with the impact of the traditional red blood cell
systems on the probability of paternity. See also cases collected in Annot., 46
A.L.R.2d 1000, 1022 (1956).



850 INDIANA LAW REVIEW [Vol. 14:831

confusion and undue prejudice when the group of potential fathers is
relatively large/"^

Scientific breakthroughs in the identification and classification

of blood factors have permitted a significant narrowing of the class

of potential fathers by blood type; therefore, estimation of paternity

based on HLA testing has attained such accuracy"" that, arguably,
probability calculations are of sufficient import to be brought to the

attention of the jury despite the risk that they will be accorded too

much weight. Dean McCormick points out, "The question is one of
identity. Every identifying mark of the father, however common the
trait, (so long as not universal) such as height, weight, color of hair,

is relevant, and it is from the accumulation of identifying traits that

circumstantial proof of identity gains its persuasive power."'" The
statistical probability that a named man is the father of a certain
child should be considered together with other types of traditional

circumstantial evidence; proof that the putative father belongs to

the small group of potential fathers would be substantial corrobora-

tive proof that he was the actual father. Shaw and Kass"^ best sum-
marize the highly probative worth and evidentiary value that HLA
blood typing tests have on the resolution of paternity:

If one man has been identified by the mother as the father,
if there is reasonable corroborating evidence, and if science

can say that only one man in a hundred of the population at
large could be the father of the child in question and that

the alleged father has the characteristics of that man, it is

highly probable that a jury would find the preponderance of

evidence required in civil cases. "^

They go on to observe:

[Juries] should be swayed by testimony that there is a 99

percent probability of paternity. All evidence is intended to

sway a jury one way or another, and certainly scientific data
of the kind presented in this paper should weigh more heavi-

ly than testimony from the memory of a neighbor. Converse-
ly, to withhold such information from a jury is to deprive it

of crucial and material facts without which the picture of

truth must be incomplete. Admission of high probability non-

Thillips V. Jackson, 615 P.2d 1228 (Utah 1980); Broun & Kelly, supra note 106 at
37.

""See note 11 supra.

'"C. McCormick, supra note 17, § 211 at 522.
"^Shaw & Kass, supra note 5, at 41.
"Vd. at 42-43. See also Collins v. Wise, 156 Ind. App. 424. 296 N.E.2d 887 (1973) in

which the court determined that civil actions to establish paternity "need only be proved

by a preponderance of the evidence." Id. at 426, 296 N.E.2d at 889.



1981] HLA TESTS 851

exclusion evidence will surely benefit illegitimate children

and falsely accused men as well as the tax-paying public."^

These recent scientific breakthroughs in blood and tissue group

identification and classification signal revisions in the rules of

evidence in paternity proceedings. Demands upon the accuracy and
efficiency of the fact-finding process are increasing with the rapid

development of novel scientific techniques. Several medical and legal

authorities strongly recommend that blood and tissue typing results
should be admissible as evidence even though an exclusion is not

established.''^ The results "should be entitled to whatever weight
the fact that an exclusion was not established in a particular case
should have — and that weight should be computed by an expert in
terms of statistical probabilities.""^ If only a small percentage, for

example five percent or less, of a random sample of men are not ex-
cluded as possible fathers, then the fact that the putative father is

not excluded by the test results is of considerable significance,

especially if other circumstantial evidence indicates the possibility

that he fathered the child. "^

Accordingly, blood and tissue typing results estimating prob-

ability of parentage should be given the same weight as other types
of circumstantial evidence; in most cases, the cumulative effect of

this proof can establish with near 100% certainty that a named man
is the father. As Professor Liddle points out, mathematical prob-
ability is most useful in "identifying certain individuals ... by show-

ing the correlation between or similarity of certain physiological,

genetic, psychic, or other characteristics of the individual and cer-

tain like characteristics known to . . . have been related to the event
in question.""^ In view of the recent scientific progress in paternity

testing, courts should reassess their stand on the admission of

statistical evidence to prove the likelihood of paternity. Certainly,

its use in paternity proceedings will greatly enhance the accuracy

and efficacy of the fact-finding process.

Recent improvements in blood and tissue group testing might
also have an important impact on another aspect of paternity litiga-

tion. In addition to their use in the courtroom, HLA test results
could be effectively used as a settlement tool to avoid paternity

litigation altogether."^ If the HLA test result gave a ninety-eight or
ninety-nine percent assurance that the defendant was the father,

"*Shaw & Kass, supra note 5, at 60.
"^See note 79 supra.

'"Krause, supra note 5, at 261.

"7d.; Sterlek & Jacobson, supra note 79, at 526.
'"Liddle, supra note 76, at 277 (emphasis added).

'"See County of Fresno v. Williams, 92 Cal. App. 3d 133, 136-37, 154 Cal. Rptr.
660. 662 (1979).



852 INDIANA LAW REVIEW [Vol. 14:831

and if other circumstantial evidence pointed to the defendant's

paternity, a putative father would probably be persuaded to avoid
litigation and seek a compromise settlement. Arguably, use of the
HLA system would have the effect of decreasing the number of
paternity suits while still imposing upon the father the obligation of
supporting his child.

V. Arguments Opposing the Use of HLA Tests as
Affirmative Evidence of Paternity

A. Countervailing Factors

Opponents of HLA tests as positive proof of paternity argue
that the probative value of the evidence is substantially outweighed

by a number of countervailing factors such as its misleading effect
on the jury, unfair prejudice to the putative father, and an undue

burden on the court system.'™ Additionally, opponents allege a high

error rate and a paucity of qualified experts. The possible dangers
cited are in large part the same ones considered in admitting
mathematical scientific evidence in general.'^'

1. Misleading Effect on the Jury. — The first risk in allowing
expert testimony based on complex scientific or mathematical

evidence is the danger that the jury will give unmerited weight and

effect to such evidence. '^^ Because of the highly technical nature of

most mathematical or scientific proof, the jury — and at times the
judge and counsel — often has difficulty in analyzing the evidence
correctly and combining it intelligently with the remaining

evidence. '^^ The impressiveness of statistics and the infallibility nor-
mally associated with objective scientific proof tempt the jury to

assign such evidence disproportionate weight; additionally, the jury

may be unable to logically assess the relevance and value of the
testimony.'^'' In People v. Collins,^^^ the California Supreme Court
warned that "[mjathematics, a veritable sorcerer in our computerized
society, while assisting the trier of fact in the search for truth, must

not [be allowed to] cast a spell over him."'^" Professor Tribe warns,

'^"Jaffee, supra note 29, at 468-85; Wiener & Socha, Methods Available for Solving
Medicolegal Problems of Disputed Parentage, 21 J. FOR. Sci. 42, 61, 63 (1975). See also

Tribe, supra note 94, at 1329-78.

'^'For a review of the most common counterbalancing factors which preclude the
application of scientifically competent evidence, see text accompanying notes 51-57

supra.

'''See Ellman & Kaye, supra note 57, at 1143-58; Tribe, supra note 94, at 1329-78.
'"Tribe, supra note 94, at 1332-38.

'^Vd.

'"=68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968).

'''Id. at 320, 438 P.2d at 33, 66 Cal, Rptr. at 497.

I



1981] HLA TESTS 853

however, that scientific evidence should not be eliminated complete-

ly from the legal process; "the drawing of unwarranted inferences

from expert testimony has long been viewed as rectifiable by cross-

examination, coupled with the opportunity to rebut."'^^ A trier of
fact should not be deprived of the value of scientific data merely

because it is highly technical and complicated.'^*

2. Unfair Prejudice to the Defendant. — Also inherent in the ap-
plication of scientific and mathematical principles to the legal

system is the danger that the jury will arrive at a premature conclu-

sion about the defendant's guilt. '^' In order to make an independent
and more accurate assessment of the putative father's paternity, the
trier of fact normally suspends judgment until it has heard and care-

fully weighed all arguments in favor of the defense.'^" Yet, use of

HLA data as independent direct-examination evidence on the ulti-
mate issue of paternity forces the trier of fact to arrive at an

estimate of the likely truth near the trial's start, long before he has

had the opportunity to consider other circumstantial evidence.'^'

Although statistical data to prove paternity inclusion may be rele-
vant, it must be considered in conjunction with nonscientific evi-

dence which does not carry with it the same risks. '^^ Arguably, the
use of HLA results and probability statistics to the exclusion of the
more conventional forms of evidence in a paternity action impedes
the effective presentation of the putative father's defense. In such a

case, the unfairness and prejudice to the defendant would substan-

tially outweigh any probative value the scientific proof may have.
Professor Jaffee proposes several safeguards for the employment of
HLA test results at trial. '^^ One appropriate safeguard he notes, is
to de-emphasize the statistical basis by disclosing it at other stages

of the trial, such as on redirect, cross-examination, or rebuttal:

A jury can distinguish rebuttal rehabilitation from direct ex-
amination in a main case, and act accordingly. Having heard . .

.

a much-evidenced dispute move rather methodically to a nar-
row focus on the credibility of plaintiff's expert, a jury
would be able to put the attendant evidence in the right
logical place.

'^^

'"Tribe, supra note 94, at 1338.

'^*See Ellman & Kaye, supra note 57, at 1161-62 (suggesting the use of simplified
but thorough probability charts during trial to reduce the confusion which scientific
data engenders).

"'Tribe, supra note 94, at 1368-72.

"7d. at 1371.

"'Id. at 1368-71. See also Jaffe, supra note 29, at 468-85.

"^See C. McCORMiCK, supra note 17, § 185 at 439 n.30.
'^Jaffee, supra note 29, at 484-85.

"Yd. at 485 (emphasis added).



854 INDIANA LAW REVIEW [Vol. 14:831

Paternity test results can be "legally relevant" only if they are

used to corroborate independent evidence, such as testimony that

the defendant had sexual relations with the mother at the critical

time.'^'^ In order to ensure that the trier of fact does not view the

HLA results as conclusive evidence of paternity, the test results
should be introduced as one of the many factors that formed the
basis for the expert's opinion. ''^^ This evidence would, therefore, not

be used as substantive evidence to prove the issue of paternity but

merely as secondary evidence focusing upon the credibility of the

expert's opinion. '^^ Used in this way, HLA data would more closely
approximate its proper function in the judicial process — as relevant
evidence to be rationally analyzed by the trier of fact.

3. Undue Burden on the Court System. — Those opposing the
admissibility of HLA test results also claim that this evidence places
an undue burden on the court system. According to some
authorities, the HLA testing procedure is "beset with numerous pit-
falls,"'^* thereby reducing its utility to the courts:

[F]ew laboratories if any are equipped to carry out all the

necessary tests, and it is doubtful that any single individual

is fully qualified to carry out and interpret all the tests. In

addition, the high cost of a "complete" test makes it prohib-
itive and impractical. A more serious difficulty is the real
possibility of mistakes, which increases in likelihood as the

variety and number of test procedures increase, thus raising
the danger of miscarriage of justice.'^'

A major criticism of the HLA testing procedure is that few
laboratories are capable of performing the more than fifty tests re-
quired for a ninety-nine percent inclusion.'*" In response, the Joint

AMA-ABA Committee proposed that steps be taken to identify and
make a list of accredited facilities qualified to perform the full series
of blood and tissue tests.'*' Placing qualified laboratories in centralized

locations throughout the country, along with the creation of uniform

procedures for identifying mailed specimens, would help to alleviate

the shortage of laboratories competent to perform the tests.'"

"'Id. at 480-81.

'^/d. at 478-79.

"Vd. at 468. 476. 478-79.

'^Wiener & Socha, supra note 120, at 61.
"Vd. at 63.

"°Id. at 61, 63; Lee, supra note 11, at 628; Polesky & Krause. Blood Typing in
Disputed Paternity Cases— Capabilities of American Laboratories, 10 Fam. L.Q. 287,
289-93 (1976).

^"AMA-ABA Guidelines, supra note 11, at 283; Shaw & Kass, supra note 5. at 59.
'"AMA-ABA Guidelines, supra note 11, at 280-83.



1981] HLA TESTS 855

In addition, the cost of performing all of these tests makes their
routine use in disputed paternity cases unrealistic.'^^ Although the
cost may vary, the entire battery of fifty-seven to sixty-two tests
costs approximately $150 per person,'"" approximately five times the
cost of the standard red blood cell grouping test.'"'^ If a state or
county were required to assume the additional cost of the HLA
tests in each case where a party claimed he was financially unable
to bear this substantial expense, potential burden on the public
purse would be extreme.'"* Arguably, the financial gains made by
shifting the child support burden from welfare agencies to the
responsible father could be offset by the burden placed on welfare
agencies in subsidizing the considerable cost of these additional

tests.

Although "employment of this entire battery of tests would re-

quire a magnitude of time, money and skill that would make it
prohibitive in routine cases,"'"^ in many instances the common blood
tests would be sufficient.'"^ The AMA-ABA report stated that it is
not necessary to utilize the entire set of tests once an exclusion had

definitely been reached.'"^ The Guidelines recommended that testing
proceed in stages, with the more general tests, ABO, Rh, and MNSs
systems, first; if no exclusion is produced in the first round, three

additional screenings, the Kell, Duffy, and Kidd systems, could then

be performed.'^" The probability of excluding a man who is not the
father ranges from sixty-three to seventy-two percent, depending on

race, when these six systems are used.''^' "In the event no exclusion
is produced at that stage, additional testing using the HLA system
. . . may be done to raise the mean probability of exclusion to at
least the ninety percent level.

"'^^
Therefore, the full spectrum of

tests should only be utilized in exceptional cases.

Some commentators point out that discretion and common sense
should prevail in deciding whether the parties should be tested
under the expensive HLA system:

'"Wiener & Socha, supra note 120, at 61.
'"Shaw & Kass, supra note 5, at 58.
'"Moore v. Astor, 102 Misc. 2d 472, 474, 423 N.Y.S.2d 1010, 1012 (Fam. Ct. 1980).

'"/d. See also Commissioner of Social Servs. v. Lardeo, 100 Misc. 2d 220, 224, 417

N.Y.S.2d 665, 669 (Fam. Ct. 1979).

'"Shaw & Kass, supra note 5, at 59.
"7d. at 60.

'*^AMA-ABA Guidelines, supra note 11, at 256.
'^7d. For a good general discussion of the ABO, Rh, MNSs, Kell, Duffy, and Kidd

blood group systems, see id. at 263-72.

'''Id.

'''Id.



856 INDIANA LAW REVIEW [Vol. 14:831

Common sense must be used. Lawyers should look at the en-
tire fact situation with which they are faced, considering

such evidence as length of gestation, access of the putative

father to the mother, access of other men, and the character

of the parties. Only if they are left with a sharp controversy

should they turn to science with its fullest potential for ap-

proaching truth. '^^

Arguably, costly HLA testing need not be done if the other six
systems show exclusion or if other factors independently establish
strong proof of paternity or nonpaternity. Thus, criticisms that HLA
testing is too expensive for routine use are largely undermined.

•4. High Error Rate. — Opponents also allege that the HLA pro-
cess has a high error rate and may result in misclassification.
Commentators indicate that the HLA tests "are reputed to have the
reproducibility of only about 90%, so that the possibility of errors is
a real one indeed."'^" They also note that the introduction of com-
plicated and sophisticated testing procedures increases the
"possibility of errors."'^'^ Possible mistakes which are likely to en-

danger the accuracy of the tests are taking a sample from someone
other than the person to be tested, incorrect storage practices, and

use of the wrong antisera."^" With the increase in the variety and
number of testing procedures, the possibility of making such errors
would also increase. It is strongly recommended that additional
research and experimentation in paternity testing are needed "to im-

prove the reliability and reproducibility of the existing tests."'"

5. Scarcity of Qualified Experts. — There is also a problem in
finding and training qualified experts to insure that all tests are car-

ried out correctly and that the test results are properly inter-

preted.'^* The Utah Supreme Court in the recent case of Phillips v.
Jackson^^^ held that the trial court erred in admitting the results of

the new HLA tests.'™ Although the court recognized the abundance
of scientific literature lauding the validity of the tests and their

widespread acceptance in medical circles,"" it held that the expert

witness failed to establish a proper foundation at trial for the ad-

missibility of the test results. The court stated:

'^^Shaw & Kass, supra note 5, at 59.
'^^Wiener & Socha, supra note 120, at 61.
'"Shaw & Kass, supra note 5, at 57.
'''Id. at 58.

'"Lee, supra note 11, at 633.

'^Vd.; Shaw & Kass, supra note 5, at 57; Wiener & Socha, supra note 120, at 63.
"'615 P.2d 1228 (Utah 1980) (3-2 decision).

""Id. at 1238.

'"Id. at 1235-36.



1981] HLA TESTS 857

[T]he articles are not sufficient, absent expert testimony, for

this Court to determine as a matter of law the issue of

general admissibility, especially in view of the paucity of

legal opinions on this point. The articles require expert in-
terpretation and elaboration. It is not clear, for example,

that they all define the HLA test in the same manner, or re-
quire that the same procedures be followed to achieve the
degree of reliability claimed. ... In short, there are
numerous unanswered questions which should be addressed

by expert testimony to lay the necessary foundation.'®^

The court further noted that the expert witness' testimony was "too
general, too vague, and too unrelated to the specific requirements

for establishing a foundation for the test . . . ."'^^ The expert did not
"indicate how the table of percentages used to establish paternity
probabilities was [calculated]."'®" In addition, there was no evidence

in the record to establish the witness' expertise either in the theory

or in the special procedure. In fact, he had no technical background

or training in the area, nor did he have a special familiarity with the

scientific literature on the subject.'"^ The general statement that the
HLA method has achieved wide scientific acceptance is insufficient,
without more, to lay the necessary foundation. Whether an adequate
evidentiary foundation was established is a mixed question of law

and fact.'"® Furthermore, the expert witness was unqualified to
interpret the test results and to establish that the actual method
employed in the particular case was performed in accordance with
proper procedures and with proper materials and equipment.'®^

The scarcity of well-informed, qualified experts to testify both
as to the validity of the HLA tests in general and to the correctness
of the procedure in the particular case makes courts hesitant to ad-
mit the test results into evidence absent a specific showing as to

their reliability and preciseness. Although HLA typing is considered
"highly reliable when performed under carefully controlled condi-
tions by laboratories that perform quality control checks,"'®** the in-

sufficient number of qualified experts to carry out and interpret the
tests weakens their validity and probative worth. Without a reserve
of qualified experts available to expose the limitations of the HLA

'''Id. at 1236.

'''Id.

'''Id. at 1236-37.

"'Id.

'"See Cramer v. Morrison, 88 Cal. App. 3d 873, 887-88, 153 Cal. Rptr. 865, 873-74
(1979).

'^'Phillips V. Jackson, 615 P.2d at 1235-36.

'**Terasaki, supra note 11, at 548.



858 INDIANA LAW REVIEW [Vol. 14:831

technique in general and the flaws in the specific case, the tests may
attain exaggerated importance in the fact-finding process.'®* In order

to avoid these pitfalls and establish a valid evidentiary foundation,

counsel should actively seek out qualified experts who can objectively
criticize and point out the possible defects in the procedure, thereby

exposing its shortcomings and enabling the trier of fact to more sen-
sibly evaluate its relevance and probative worth.'™

Another possible solution is the establishment of centralized,

special institutes devoted solely to blood and tissue typing.'" "Such

central reference institutes could overcome the problem of training

qualified experts, producing and standardizing antiserums and other

reagents . . . ."'" Presently, courts may be justified in their reluc-
tance to admit results of HLA tissue typing tests because of the
scarcity of competent facilities to perform the tests and the lack of

qualified experts to interpret their results; the degree of precise-

ness of evidentiary foundations would vary considerably from juris-

diction to jurisdiction. With the advent of centralized, accredited

laboratories, however, to train qualified experts, to standardize

testing procedures, to develop acceptable laboratory quality control,

and to improve the reliability and reproducibility of the tests, the

courts should be less reluctant to admit the results as evidence of

positive proof of paternity. The high evidentiary value given to the
tests would be more justified as the accuracy of the tests increased;
their probative worth would definitely outweigh any potential risks

of jury confusion and undue burden on the court system.

VI. Judicial Reaction to HLA Testing

There have been no Indiana cases admitting evidence on the
statistical likelihood of paternity.'" Nor have the courts interpreted
the extent of change occasioned by the amendment of Indiana Code
section 31-6-6.1-8. However, several other jurisdictions have
acknowledged the scientific community's acceptance of the HLA
tests as accurate and reliable predictors of paternity and nonpater-

nity,'^" and a few courts have held such proof admissible as highly

lti4T
'United States v. Bailer, 519 F.2d 463, 466 (4th CirJ, cert, denied, 423 U.S. 1019

(1975): United States v. Addison, 498 F.2d 741, 743-44 (D.C. Cir. 1974); People v. Kelly,

17 Cal. 3d 24, 30-32, 37-40, 549 P.2d 1240, 1244-45, 1248-50, 130 Cal. Rptr. 144, 148-49,

152-54 (1976).

""See notes 59 & 64 supra and accompanying text.
"'See Wiener & Socha, supra note 120, at 63.
"'Id.

"'Recall that Indiana courts have only allowed blood test evidence to exclude a

man from paternity. See note 19 supra.
"'E.g., Simons v. Jorg, 384 So. 2d 1362 (Fla. Dist. Ct. App. 1980); Commonwealth

V. Blazo, 406 N.E.2d 1323 (Mass. Ct. App. 1980); Malvasi v. Malvasi. 167 N.J. Super.



1981] HLA TESTS 859

probative evidence."^ The courts often cite medical and legal jour-

nals which laud the HLA tests as an improved and dependable
method for ascertaining paternity.'™ However, even the progressive

courts recognize that new developments in paternity testing must
have an adequate evidentiary foundation in order to be admitted as

evidence.
'^^

California is the pioneer state in utilizing all evidentiary aspects

of HLA tissue typing. In the landmark case of Cramer v. Morrison"^

513, 514, 401 A.2d 279. 280 (1979). In Simons v. Jorg, 384 So. 2d 1362 (Fla. Dist. Ct.

App. 1980), although it did not reach the question of the admissibility of HLA test
results at trial nor decide the weight to be accorded such medical evidence at trial, the

court upheld the trial court's decision that, based on the "undisputed" evidence of the

test's reliability and accuracy, the party seeking to establish paternity showed suffi-

cient good cause to require the putative father to submit to such a test. Id. at 1363. In

Commonwealth v. Blazo, 406 N.E.2d 1323 (Mass. Ct. App. 1980), the appellate c6urt

upheld the trial court's refusal to order additional blood tests for the defendant, the

mother, and the child since the refusal was founded on the inconclusive red blood cell

groupings and since the HLA test had not been generally recognized and accepted at
this time. In dicta, though, the court favored the use of HLA tests in the future:

In view of the high level of accuracy, now attained from the HLA test and
its recognition and general acceptance by the scientific and medical community .

,

since the date of this trial, in any contested paternity case arising hereafter

when the putative father requests the HLA test, the judge should carefully
consider in the exercise of his or her sound discretion ordering the admini-

stration of the HLA test to the defendant, the mother and the child.
Id. at 1326. See also Phillips v. Jackson, 615 P.2d 1228 (Utah 1980); Marticorena v.

Miller, 597 P.2d 1349 (Utah 1979) (Maughan, J., dissenting) (Justice Maughan advocated
a remand for a new trial on the paternity issue in view of the accuracy and highly pro-
bative nature of the new HLA tests which were unavailable to the parties at the time
of the first trial).

'"County of Fresno v. Williams, 92 Cal. App. 3d 133, 154 Cal. Rptr. 660 (1979);

Cramer v. Morrison, 88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979); Michael B. v.

Amanda B., 86 Cal. App. 3d 1006, 150 Cal. Rptr. 586 (1978); Carlyon v. Weeks, 387 So.
2d 465 (Fla. Dist. Ct. App. 1980); Malvasi v. Malvasi, 167 N.J. Super. 513, 401 A.2d 279

(1979). Contra, Jane L. v. Rodney B., 103 Misc. 2d 9, 425 N.Y.S.2d 235 (Fam. Ct. 1980);
Moore v. Astor, 102 Misc. 2d 472, 423 N.Y.S.2d 1010 (Fam. Ct. 1980); Goodrich v. Nor-
man, 100 Misc. 2d 33, 421 N.Y.S.2d 285 (Fam. Ct. 1979); Commissioner of Social Servs.

v. Lardeo, 100 Misc. 2d 220, 417 N.Y.S.2d 665 (Fam. Ct. 1975).

"'See Cramer v. Morrison, 88 Cal. App. 3d at 887-88, 153 Cal. Rptr. at 874; Com-
missioner of Social Servs. v. Lardeo, 100 Misc. 2d at 220, 417 N.Y.S.2d at 666-67, 669.

The Cramer court remanded the case for a factual determination as to whether the
foundational requirements were met in the particular case. Although the numerous
legal and scientific publications established the tests' validity and their general accept-

ance in the scientific community as a matter of law, a full determination of whether

the foundational predicate was met also presented a question of fact to be ascertained
from the testimony of qualified experts in the field. Cramer v. Morrison, 88 Cal. App.
3d at 886-89, 153 Cal. Rptr. at 873-74.

'"Cramer v. Morrison, 88 Cal. App. 3d at 885-89, 153 Cal. Rptr. at 872-74; County

of Fresno v. Williams, 92 Cal. App. 3d at 138, 154 Cal. Rptr. at 663; Carlyon v. Weeks,

387 So. 2d at 467-68; Malvasi v. Malvasi, 167 N.J. Super, at 515, 401 A.2d at 280.
""88 Cal. App. 3d 873, 153 Cal. Rptr. 865 (1979).



860 INDIANA LAW REVIEW [Vol. 14:831

the California Court of Appeals reversed the trial court's grant of

the defendant's motion in limine and said that the results of HLA
tests could be received as probative evidence showing likelihood of

paternity. '^^ The court held that it was irrelevant that the California
legislature, when it adopted the Uniform Act on Blood Tests to
Determine Paternity,'*" omitted part of section 4 which allows the
admission in evidence of blood test results to show probability of
paternity.'*' It interpreted the omission to refer not to the

sophisticated HLA test but to the standard Landsteiner blood
grouping tests which were in use when the Uniform Act was
adopted in California.'*^ The Cramer court was so convinced that the
test results would enhance the accuracy and impartiality of the

paternity suit that it independently admitted this scientific evidence

since the statute failed to exclude HLA results as evidence of
paternity.'*^

The crucial question, however, was whether the probative value
of the evidence outweighed its prejudicial effect. The Cramer court
allowed the use of HLA tests to determine probability only after a
deliberate balancing of the probative worth of such evidence and the

dangers of unfair prejudice to the other party. '*^ The court noted
that the plaintiff most likely would have established the requisite

evidentiary foundation for the admissibility of the HLA test had the
motion in limine not been erroneously granted. '^'^

In order to demonstrate the validity of the HLA test as a
reliable indicator of paternity and its acceptance by the scientific

community, the plaintiff called Dr. Paul Terasaki as an expert

witness and also introduced various medical and legal journals to

document the general acceptance of the test.'*^ As a leading expert
in the United States in the field of tissue typing and blood testing,

Dr. Terasaki was well-qualified to testify concerning both the
reliability of the HLA test as an indicator of paternity and its
general acceptance in the scientific world.'" Additionally, because

Dr. Terasaki performed the HLA test on blood samples taken from
the mother, the child, and the defendant,'** he was well-qualified to

"'Id. at 880, 884-89, 153 Cal. Rptr. at 868, 871-74.

'*°See note 38 supra.

'"88 Cal. App. 3d at 880-83, 153 Cal. Rptr. at 868-71.

'''Id.

"'Id.

'''Id. at 884-85, 153 Cal. Rptr. at 872.

"^/d. at 888-89, 153 Cal. Rptr. at 874.

'''Id. at 885-88, 153 Cal. Rptr. at 872-74.

'"/d. at 877-78, 886-88, & n.l9. 153 Cal. Rptr. at 867, 873-74 & n.l9.
'"Id. at 877, 153 Cal. Rptr. at 867.



1981] HLA TESTS 861

demonstrate that proper procedures were used.'*"
The court of appeals, also held that the defendant was precluded

from attacking the foundational predicate of the HLA test because
the defendant specifically indicated to the trial court that he did not

base his motion in limine on the ground that the test had not attained
general acceptance in the scientific community.'"" Not only was the
Cramer court convinced of the existence of valid scientific bases for
the HLA data, but it was also convinced that the highly relevant
and probative worth of the evidence outweighed the dangers in-
herent in its introduction.'"'

The court found that such readily obtainable genetic evidence
could provide a more precise and objective basis for ascertaining
paternity than could the "flimsy" subjective evidence by which

paternity has been determined in the past.'"^ The Cramer court
reasoned that the dramatic increase in the accuracy with which pro-

babilities can be determined requires the use of HLA test results in
order to enhance the empirical qualities of paternity proceedings.'"''

The court concluded, '"[t]he more substantial the probative value of
relevant evidence, the greater must be the danger of prejudice to an
adverse party, in order to justify a finding that the probative value

is substantially outweighed by the danger of undue prejudice.'"'"^

The Cramer court's reasoning can be extended a step further.
Because HLA tests combined with the conventional red blood cell
groupings can establish inclusion with 95% accuracy, they are the
best available scientific evidence on the issue of paternity. A man
not definitely excluded after complete testing will undoubtedly be

the actual father, given other credible testimony that he had a

relationship with the natural mother.'"^ Excluding such competent

scientific evidence on the paternity issue would greatly undermine

the integrity of the legal process and would perpetuate the uncer-

tainties of fatherhood which still exist despite a judicial finding of

paternity or nonpaternity. '"''

The California Court of Appeals in County of Fresno v. Superior

190C

I9n

1921

193 7

"'See People v. Kelly, 17 Cal. 3d 24, 30, 549 P.2d 1240, 1244, 130 Cal. Rptr. 144,
148 (1976).

'"88 Cal. App. 3d at 887-88, 153 Cal. Rptr. at 873-74.

"/d. at 884-85, 153 Cal. Rptr. at 872.

''/d. at 885, 153 Cal. Rptr. at 872.

"Id. In Cramer, Dr. Terasaki determined that there was a 98.3% probability that
defendant was the father. Id.

"'88 Cal. App. 3d at 884-85, 153 Cal. Rptr. at 872 (citing Jefferson, California
Evidence Benchbook § 22.1 at 289 (1972)).

"'See Jane L. v. Rodney B., 103 Misc. 2d 9, 10, 425 N.Y.S.2d 235, 236 (Fam. Ct.
1980).

"See generally note 174 supra and accompanying text.
196 (



862 INDIANA LAW REVIEW [Vol. 14:831

CourV^^ indicated that "public policy favors the use of objective

highly accurate scientific analysis."'^'* The court reasoned that a
more sophisticated and exact test aids the court in "the difficult
search for the truth";'^** to the extent that it "contributes to the

resolution of the paternity issue, it may reduce the embarrassment
of usual discovery procedures concerning conception."^°''

The same court in Michael B. v. Superior Courf°^ advocated the
admissibility of the HLA test as affirmative evidence:

Even when the test does not exclude a defendant from being
the possible father, it could be a significant factor to be con-

sidered by the parties in facilitating resolution of cases, par-

ticularly where there is limited evidence on the paternity
issue and the particular test is helpful in determining

statistical probabilities of paternity.
^°^

The traditional policies of preserving the family and reducing
doubts about parentage still continue to control. ^°^ As the California
Supreme Court stated in Salas v. Cortez,^°* "[T]he state owes it to
the child to ensure that an accurate determination of parentage will

be made."^"'^ Considering the interests at stake, the question of

paternity should be dealt with empirically by use of available

genetic data.

Two recent cases have, however, questioned the propriety of ad-
mitting HLA test results to establish paternity, thereby demonstrat-
ing the judiciary's hesitation to revise the conventional rules of

evidence to conform with modern scientific advances in the absence
of specific legislative authorization or adequate safeguards. In J.B.

V. A.F^°^ the Wisconsin Court of Appeals held that although "HLA
testing has dramatically increased the accuracy with which probabil-

ities can be determined,"^"' HLA test results could not be admissible
as evidence to establish paternity under present Wisconsin law. The
court reasoned that such an authorization would in effect "work an

amendment"^"* because the Wisconsin paternity statute specifically

''92 Cal. App. 3d 133, 154 Cal. Rptr. 660 (1979).

"Yd. at 138, 154 Cal. Rptr at 663.

^""Id.

^"'86 Cal. App. 3d 1006, 150 Cal. Rptr. 586 (1978).

^""Id. at 1009-10, 150 Cal. Rptr. at 588.

^^See Cramer v. Morrison, 88 Cal. App. 3d at 885, 153 Cal. Rptr. at 872.
'''*24 Cal. 3d 22, 593 P.2d 226. 154 Cal. Rptr. 529, cert, denied, 444 U.S. 900 (1979).

'"Yd. at 34, 593 P.2d at 234, 154 Cal. Rptr. at 537.

^2 Wis. 2d 696, 285 N.W.2d 880 (Wis. Ct App. 1979).
^°7d. at 703, 285 N.W.2d at 883.
'"'Id. at 705. 285 N.W.2d at 884.



1981] HLA TESTS 863

allowed blood test results as evidence "only in cases where definite

exclusion of any person [was] established."^"^ The court interpreted

the term "blood tests" to include both the standard red blood cell

groups and also the new HLA tests and was reluctant to incorporate
new scientific developments into the legal process, waiting instead
for specific legislative approval.

In Phillips V. Jackson,^^" the Supreme Court of Utah held that
HLA test results were inadmissible as evidence proving paternity,^"
although the Utah statute allowed the affirmative use of blood tests,

subject to the court's discretion.^'^ The Utah Supreme Court, exer-
cising its discretion, concluded that an adequate foundation regard-

ing the accuracy and reliability of the tests had not been laid.

Although the court was aware of various scientific and medical jour-

nals commending the validity of the HLA tests, it restrictively held
that the tests fell below the legal standards required for the ad-

missibility of scientific evidence.^'^ The court maintained that the ex-
pert witness was not qualified to elucidate the scientific literature
on the subject or to interpret the actual test results.^'^ The record
did not establish the witness' expertise either in the theory or in

the special procedure. Even with this favorable state statute, the
Phillips court was cautious in integrating recent scientific
developments into the factual determination of the paternity issue

as long as there was even the slightest question regarding their ac-
curacy and evidentiary value.

vn. Conclusion

With the present increase in the importance of paternity litiga-

tion, the need for accurate, reliable paternity tests will also in-

'"'Wis. Stat. § 885.23 (1966). However, since the case of J.B. v. A.F., 92 Wis. 2d

696, 285 N.W.2d 880 (Wis. Ct. App. 1979), tiiis statute has been amended (effective Ju-
ly 1, 1981) to allow blood test results to "be receivable as evidence in any case where

exclusion from parentage is established or where a probability of parentage is shown
to exist." Wis. Stat. § 885.23 (West Supp. 1980-1981) (emphasis added). The Wisconsin
legislature, in enacting this amendment, apparently considered the dicta in J.B. v. A.F.

favoring revision of the rules of evidence to include statistical estimates of the

likelihood of paternity. It will be interesting to observe how the Wisconsin courts will
apply this amendment, for it is as vague as the Indiana one in establishing specific

guidelines for the courts.

'"'615 P.2d 1228 (Utah 1980).

"7d. at 1238.

"'Utah Code Ann. § 78-45a-10 (1977). Section 10 provides in part: "If the experts
conclude that the blood tests show the possibility of the alleged father's paternity, ad-
mission of this evidence is within the discretion of the court, depending upon the infre-

quency of the blood type." Id.
"'615 P.2d at 1235-38.

"*Id. See also text accompanying notes 158-67 supra.



864 INDIANA LAW REVIEW [Vol. 14:831

crease. The validity of HLA tissue typing as an effective means of
establishing paternity exclusion and inclusion with a high degree of

conclusiveness is being more widely accepted in both medical and
legal circles, and appropriate revisions in the law of evidence will no

doubt be made as the courts become more willing to admit prob-
abilistic proof of paternity.

With the greater use of complex scientific evidence in the legal
process, however, safeguards need to be developed in order for such

technical data to be properly interpreted and applied in the court-

room. The medical and legal professions must work together so that
sophisticated scientific information can be responsibly and in-

telligently used in the courts.^'^ Statistical data estimating the

likelihood of paternity is so highly probative on the crucial issue of

paternity that it would be unfair to totally prohibit its use because

of the risk that the jury will misconstrue its worth and give it

unmerited weight. Cautionary jury instructions should be devised to

warn the jurors that probabilistic data should not be the sole
deciding factor on the issue of paternity; it should be used to cor-

roborate other, more conventional forms of circumstantial evidence.
Application of scientific proof should also be restricted to cross-

examination and rebuttal in order to prevent premature conclusions

before the rest of the evidence has been presented. If, in addition to

these safeguards, advance notice is given to the adversary of the in-

tent to use HLA tests as proof, and if "some provision for publicly
financed expert assistance to the indigent accused confronted with

an expert adversary"^'® is made, there will be little if any prejudice

to the putative father. No undue burden on the judicial system will
result by admitting these highly probative and reliable HLA test
results as affirmative evidence of paternity.

Francine Protogere

'^Krause, supra note 5, at 281.

"Tribe, supra note 94, at 1338.