Kofford v. Flora

• Citation: 744 P.2d 1343
• Decision Date: 30 September 1987
• Docket Number: No. 18854,18854
• Parties: Tracy L. KOFFORD and the State of Utah, by and through the Utah State Department of Social Services, Plaintiffs and Respondents, v. Donald Lane FLORA, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 1343

744 P.2d 1343

56 USLW 2252

Tracy L. KOFFORD and the State of Utah, by and through the

Utah State Department of Social Services, Plaintiffs and Respondents, v. Donald Lane FLORA, Defendant and Appellant.

No. 18854.

Supreme Court of Utah.

Sept. 30, 1987.

Ted Cannon, Salt Lake City, Sandy Mooy, Farmington, for plaintiffs and respondents.

Paul T. Morris, West Valley City, for defendant and appellant.

STEWART, Associate Chief Justice:

Donald Lane Flora ¹ appeals from a judgment and decree declaring him to be the natural father of a child born to plaintiff Tracy L. Kofford and ordering him to pay $100 per month child support to her. Judgment was also rendered against Flora and in favor of the co-plaintiff, the State of Utah, in the sum of $2,000 as reimbursement for past public assistance monies paid to Tracy L. Kofford. At trial, evidence from a human leukocyte antigen (HLA) test was admitted. The issues on this appeal are whether that evidence should have been admitted and whether a clear and convincing standard of proof should be applied Kofford's child was born March 23, 1979. When Kofford applied for assistance from the State, she listed Flora as the child's father. Flora has consistently denied paternity, claiming that he did not have sexual intercourse with Kofford during the period when conception could have occurred. He admits, however, that he had sexual intercourse with her prior to that time, during her menstrual cycle.

to the paternity issue rather than a preponderance of the evidence standard. We reverse and remand for a new trial in light of the standards we set out herein for the admission of HLA test evidence.

Kofford claims Flora was her only consort during the time she could have conceived. Other witnesses testified that she and Flora had sexual intercourse during the time when conception could have occurred. Still other testimony contradicts Kofford's statement that Flora was her only consort during the critical time period. ²

Blood and HLA tests were ordered by the trial court. Blood samples were drawn from Kofford, Flora, the child, and Kofford's mother. HLA and ABO tests were conducted and the results admitted at trial. An expert witness calculated that Flora's probability of paternity was 85 percent. To arrive at that figure, the expert assumed that Flora and one other man of the same racial or ethnic group had had sexual intercourse with Kofford during the time conception could have occurred.

The trial court found that the evidence preponderated in favor of Flora's paternity and entered judgment accordingly.

I. GENERAL RELIABILITY OF HLA TESTS IN PROVING PATERNITY

1. The Test To Be Applied

Phillips v. Jackson, 615 P.2d 1228 (Utah 1980), held that the HLA test was inadmissible because there was inadequate evidence of its reliability and that, in addition, the evidentiary foundation failed to demonstrate that it had been performed in accordance with appropriate procedures. In addressing the reliability issue, we held that new scientific evidence may be found reliable either under the general scientific acceptance test enumerated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), or under a broader test of reasonable demonstrability of reliability or "inherent reliability." Phillips, 615 P.2d at 1234-35. We did not then, nor need we now, decide whether the tests are coextensive. Now that we readdress the issue of the admissibility of HLA tests, we do so under the Frye test because of the widespread attention the reliability of the HLA test has received from courts and scholars since Phillips. Parenthetically, we also note that Phillips held that HLA test evidence would not be inadmissible under statutory law governing the admissibility of blood tests if reliability and an adequate foundation were established.

The question now arises for the first time whether the Frye general scientific acceptance test applied by Phillips has been superseded by the adoption of the Utah Rules of Evidence in 1983. The Frye test was first established long before the adoption of the Federal Rules of Evidence, upon which the Utah Rules of Evidence are patterned. See Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). In Phillips, we stated:

Frye held that scientific tests still in the experimental stages should not be admitted in evidence, but that scientific testimony deduced from a "well-recognized scientific principle or discovery" is admissible if the scientific principle from which the deduction is made is "sufficiently established to have gained general acceptance Phillips, 615 P.2d at 1233 (quoting Frye, 293 F. at 1014).

in the particular field in which it belongs."

Before the adoption of the present Utah Rules of Evidence, Phillips recognized that the Frye test is suited for certain types of new scientific evidence and that the admissibility of scientific evidence is not solely dependent on meeting the Frye requirements, if the reliability of the scientific techniques employed in a case can otherwise be reasonably demonstrated.

Different types of scientific evidence may pose varying and sometimes difficult problems for the integrity of the factfinding process, but in an age when one scientific advancement tumbles in rapid succession upon another and may be known only among a limited circle of scientists, we are not inclined to adopt a standard that would deprive the judicial process of relevant scientific evidence simply because it is of recent vintage or because knowledge of the principles, or the process for applying a principle, is limited to a small but highly specialized group of experts.

Phillips, 615 P.2d at 1234.

Rule 702 of the Utah Rules of Evidence, which tracks the same federal rule, governs generally the admission of scientific evidence. Rule 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Utah R.Evid. 702. Rule 703 provides further that the facts or data which form the basis of the expert's opinion need not be admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field...."

However the test is formulated for determining the admissibility of new scientific evidence, a foundation establishing the reliability of new scientific evidence must be established for it to be admissible. United States v. Downing, 753 F.2d 1224, 1237-38 (3d Cir.1985); Phillips, 615 P.2d at 1234. Some federal courts have rejected the Frye test, at least as an exclusive test for evaluating new scientific evidence under the Federal Rules of Evidence. See, e.g., Downing, 753 F.2d 1224 (3d Cir.1985); United States v. Williams, 583 F.2d 1194 (2d Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59 L.Ed.2d 77 (1979); United States v. Baller, 519 F.2d 463 (4th Cir.), cert. denied, 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391 (1975). See also State v. Williams, 388 A.2d 500 (Me.1978); State v. Brown, 297 Or. 404, 687 P.2d 751 (1984); State v. Walstad, 119 Wis.2d 483, 351 N.W.2d 469 (1984).

Nevertheless, we think it error to suppose that Frye should be rejected because of those rules. A number of federal and state courts have continued to apply that standard. See United States v. Distler, 671 F.2d 954 (6th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 118, 70 L.Ed.2d 102 (1981); United States v. Tranowski, 659 F.2d 750, 756 (7th Cir.1981); United States v. Hendershot, 614 F.2d 648 (9th Cir.1980); United States v. McDaniel, 538 F.2d 408 (D.C.Cir.1976). See also People v. Shirley, 181 Cal.Rptr. 243, 723 P.2d 1354 (Cal.1982), cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982); Saltzburg & K. Redden, Federal Rules of Evidence Manual, 452 (3rd ed. 1982).

Even some of those courts which have rejected Frye as an exclusive test recognize that in some instances the Frye test is sufficient to establish the reliability of scientific evidence. The United States Court of Appeals for the Second Circuit has written that "[a] technique unable to garner any support, or only miniscule support, within a scientific community, would be found unreliable by a court." Williams, 583 F.2d at 1198 (emphasis in original). And Downing, a Third Circuit case often cited as a case that rejects the Frye test, stated that "a technique that satisfies the Frye test usually will be found to be reliable as well." Downing, 753 F.2d at 1238.

We hold that Frye is a valid test, even though not necessarily an exclusive

                test, for determining when a scientific evidence is sufficiently reliable to be admitted and is not inconsistent with Rules 402, 403, and 702 of the Utah Rules of Evidence.  See Downing, 753 F.2d 1224.   Now that the reliability of the principles of HLA testing has been demonstrated, see infra, judicial notice of that fact may be taken, and hereafter foundational evidence as to the validity of the basic principles may be dispensed with in this jurisdiction in the future.  As we wrote in Phillips, "General acceptance in the scientific community ... assures the validity of the basic principle."  Phillips, 615 P.2d at 1233
                

2. Applying the Frye Test

We believe that the basic principles upon which HLA tests for determining paternity are founded have now received general acceptance in the scientific community. Since Phillips was handed down, all courts that have considered the validity of HLA tests for determining paternity have found that they are founded on reliable principles, and most courts have based that determination on the general acceptance in that part of the scientific community concerned with HLA testing for the purpose of proving paternity. Moore v. McNamara, 201 Conn. 16, 513 A.2d 660 (1986); Cutchember v. Payne, 466 A.2d 1240 (D.C.1983); Carlyon v. Weeks, 387 So.2d 465 (Fla.Dis...