Com. v. Beausoleil

Decision Date03 April 1986
Citation397 Mass. 206,490 N.E.2d 788
Parties, 54 USLW 2571 COMMONWEALTH v. Michael BEAUSOLEIL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Bertha D. Josephson, Asst. Dist. Atty., for Com.

Susan M. Tombs, Greenfield, for defendant.

Leah W. Sprague, Sp. Asst. Atty. Gen., & Cathleen J. May, Boston, for Dept. of Public Welfare, amicus curiae.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

In this case we consider whether G.L. c. 273, § 12A (1984 ed.), providing for admission of the results of a blood grouping test in a paternity proceeding to exclude the possibility of paternity of the alleged father, prohibits the introduction of inculpatory human leukocyte antigen (HLA) test results. Further, we consider whether HLA test results may be admissible to establish paternity, if not barred by G.L. c. 273, § 12A.

The defendant, Michael Beausoleil, was charged by Sharon Burke with fathering her child, in violation of G.L. c. 273, § 12 (1984 ed.). The defendant moved for a court order pursuant to G.L. c. 273, § 12A, requiring that he, the mother, and the child submit to an HLA blood test to determine whether his nonpaternity might be established. The trial judge allowed the defendant's motion, but proceeded to trial and took other evidence. Later, the University of Massachusetts Medical Center's department of laboratory medicine submitted a report stating that, based on a statistical analysis of the results, the probability of paternity was 98.2%, which it termed "very likely." Because the report did not exculpate the defendant, the judge entered a finding of guilty and ordered the defendant to pay child support of $75 a week. The defendant appealed for a trial de novo before a jury of six. G.L. c. 218, § 27A (1984 ed.).

Prior to the trial de novo, the Commonwealth filed a motion in limine requesting admission of the HLA test results. The judge denied the motion without a hearing. 1 The Commonwealth then filed a petition for relief pursuant to G.L. c. 211, § 3 (1984 ed.). Treating the denial of the Commonwealth's motion as an allowance of a motion to suppress under Mass.R.Crim.P. 15(b)(2), 378 Mass. 882 (1979), 2 a single justice of this court transferred the case to the Appeals Court. G.L. c. 211, § 4A (1984 ed.). Subsequently, we transferred the case to this court on our own motion.

The Commonwealth asserts on appeal that the judge improperly denied its motion in limine, arguing that G.L. c. 273, § 12A, does not prohibit the introduction of HLA test results to prove paternity. The defendant argues to the contrary. The Commonwealth further contends that, in the absence of any statutory prohibition, inculpatory HLA test results are sufficiently reliable to satisfy the fundamental admissibility requirements for scientific evidence. The defendant argues that the record is barren of evidence of the scientific reliability of HLA test procedures. He further argues that he would be "highly" prejudiced if HLA test results were admitted as evidence of his paternity.

Before we address these issues, a brief discussion of the basic scientific principles and procedures involved in paternity testing is warranted. In view of the absence of evidence or judicial findings, we draw on the authorities cited herein for our generalized discussion. 3

Paternity testing is based on the existence of genetic markers which are inherited from a child's parents and are found in the various components of the blood. More than 260 genetic markers have been identified for red blood cells (red isoantigens) and over fifty genetic markers have been identified for white blood cells (white isoantigens). Paternity testing involves the identification of such markers followed by application of Mendelian rules of inheritance. Traditionally, exclusion of paternity has been the primary use to which these rules have been put. If a child lacks a genetic marker that a child of the accused must have, or if the child displays a marker that neither the mother nor the putative father has, paternity is conclusively excluded. Lee, Current Status of Paternity Testing, 9 Fam.L.Q. 615, 616-617, 621 (1975). In such cases the impossibility of the accused's paternity is established to a medical certainty. See Commonwealth v. D'Avella, 339 Mass. 642, 645, 162 N.E.2d 19 (1959) ("[t]he reliability of [blood] tests to prove nonpaternity is well established as a scientific fact").

Six red blood cell tests most commonly have been employed in paternity testing. The first three were discovered by Dr. Karl Landsteiner and his colleagues and consist of the ABO, MNS's, and Rh systems, known collectively as the Landsteiner series. Lemmon & Murphy, The Evidentiary Use of the HLA Blood Test in Virginia, 19 U.Rich.L.Rev. 235, 238-239 (1985). These three systems yield a cumulative probability of between 52% and 57%, depending on the race of the putative father, that at least one of them will exclude paternity of a falsely accused man. Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247, 256-258 (1976) (hereinafter, Joint Guidelines). Even with the addition of three other red isoantigen tests, Kell, Duffy, and Kidd, now typically employed in conjunction with the Landsteiner series (enhanced Landsteiner series), the probability of exclusion of a nonfather is still no greater than 63% to 72%. Id. Therefore, although exclusion of paternity by means of these tests is conclusive, nonexclusion is not, because there may remain a greater than 30% probability that a falsely accused man would not have been excluded. 4

In recent years there have been claims of substantial advances in the field of paternity testing. HLA testing was developed in the 1960's by Dr. Paul Terasaki to determine donor-recipient compatability of organ transplants, but more recently has been used for purposes of determining paternity. See Terasaki, Resolution by HLA Testing of 1000 Paternity Cases not Excluded by ABO Testing, 16 J.Fam.L. 543 (1978). The HLA test is based on the identification and typing of more than fifty antigens found in the white blood cells. Unlike the enhanced Landsteiner series which only can be performed on blood, the HLA test can be performed on certain body tissue in which HLA antigens appear. Consequently, it is often termed a tissue typing test, although for purposes of paternity testing, economic feasibility usually dictates that it be performed on blood.

HLA testing allegedly represents an improvement over red isoantigen blood tests in two respects. First, it has a greater capability than the enhanced Landsteiner series for excluding falsely accused men. When administered by itself, the HLA test excludes between 78% and 80% of all nonfathers; this figure increases to over 90% when it is administered in conjunction with the enhanced Landsteiner series. See Joint Guidelines, supra at 257, 258. Second, because of this increased exclusionary capability and the relative rarity of HLA markers, it is claimed that the HLA system can be utilized to calculate a reliable statistical estimation of an accused's likelihood of paternity. 5 This statistical calculation is "made on the basis of established data regarding the frequency with which particular genes appear in certain segments of the population and the combinations in which these genes appear in the child and putative father." Jones v. Robinson, 229 Va. 276, 329 S.E.2d 794, 797 (1985). This information is then used to derive the probability of paternity by use of Bayes' Theorem, a mathematical formula which describes the way newly discovered statistical information alters a previously established probability. 6 Peterson, supra at 681. In most cases in which the putative father is not excluded by HLA testing, the estimated probability of paternity will be high, typically exceeding 90%. Terasaki, supra.

We turn now to consideration of the issues raised on appeal. Statute 1954, c. 232, now G.L. c. 273, § 12A, is entitled, "An Act providing for blood grouping tests to aid in the determination of paternity." The statute is a so-called "exclusionary" blood test statute, that is, one permitting the introduction of blood test results only to exclude the possibility of paternity. The statute provides: "In any proceeding to determine the question of paternity, the court, on motion of the alleged father, shall order the mother, her child and the alleged father to submit to one or more blood grouping tests, to be made by a duly qualified physician or other duly qualified person, designated by the court, to determine whether or not the alleged father can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where definite exclusion of the alleged father as such father has been established. If one of the parties refuses to comply with the order of the court relative to such tests, such fact shall be admissible in evidence in such proceeding unless the court, for good cause, otherwise orders." (Emphasis supplied.) 7

The statute refers specifically to "blood grouping tests," terminology that has come to be associated with the red blood cell isoantigen tests of which those comprising the enhanced Landsteiner series are typical. The HLA system, however, is a tissue typing procedure. See, e.g., Ellman & Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1139 (1979) ("HLA testing can be thought of as tissue typing rather than blood group typing"); Terasaki, supra at 543 (discussing the "HLA system of tissue types"). Thus, the Supreme Court of Ohio, construing a statute similar to G.L. c. 273, § 12A, held that HLA tests "are basically genetic comparison examinations, rather than blood grouping tests" and are, therefore, not within the statutory proscription against admission...

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