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| Article |
| The Probability of an Ultimate Issue: The Strange Cases of Paternity Testing |
| David Kaye |
| 75 Iowa L. Rev. 75 (1989) |
| Library Access |
|
Abstract: A sea change has recently come over inclusion of scientific evidence proving paternity. Judges and juries in courtrooms across the nation now hear testimony from physicians, geneticists, statisticians, or technicians giving the probability that the defendant is the father. The signs of a more mature jurisprudence for probability evidence are encouraging, but some of the recent judicial efforts to fashion a suitable set of confining principles are, at best, qualified successes. The most severe problems lie with the peculiar prophylactic rules propounded in the Massachusetts case, Commonwealth v. Beausoleil. By straining to decide issues not adequately presented in the case before it, the Beausoleil court has strewn seeds that threaten to take root in judicial soil largely devoid of fit competitors. Indeed, the Beausoleil rules already have spread westward, being adopted in a Utah case, Kofford v. Flora. Unless the Beausoleil court's analysis is exposed to careful scrutiny, there is a danger that its errors will infest other jurisdictions.This article argues in favor of a more flexible approach to the admissibility of the various forms of probabilities that are available in parentage litigation-an approach that is also more consistent with the rules applied to other forms of quantified evidence of identity. It describes the Beausoleil and Flora opinions and scrutinizes each of the Beausoleil rules in order to demonstrate that Beausoleil and Flora proceed from a series of misconceptions about the meaning of the paternity probability, its relation to other statistical features of the laboratory evidence, the inferences that may be drawn from inclusionary genetic tests, and probabilistic reasoning generally. As a consequence, some of the guidelines are unnecessarily restrictive, while others are too lenient to promote the proper use of the genetic evidence. |
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