State ex rel. Hausner v. Blackman

• Decision Date: 29 April 1983
• Docket Number: No. 52771,52771
• Citation: 662 P.2d 1183,233 Kan. 223
• Parties: , 43 A.L.R.4th 565 STATE of Kansas, ex rel. Sheila HAUSNER, and Simon Hausner, by and through his mother and next friend, Sheila Hausner, Appellees, v. Paul BLACKMAN, Appellant.
• Court: Kansas Supreme Court

Page 1183

662 P.2d 1183

233 Kan. 223, 43 A.L.R.4th 565

STATE of Kansas, ex rel. Sheila HAUSNER, and Simon Hausner,

by and through his mother and next friend, Sheila

Hausner, Appellees, v. Paul BLACKMAN, Appellant.

No. 52771.

Supreme Court of Kansas.

April 29, 1983.

Syllabus by the Court

1. Evidence of an alleged father's exclusion by blood tests is admissible in a paternity case.

2. Blood test evidence which goes no further than to fail to exclude an alleged father is not proof of paternity and is inadmissible in a paternity case.

3. Scientifically reliable evidence of an alleged father's likelihood of paternity, meeting relevant legal evidentiary standards, is admissible in such an action.

4. K.S.A. 23-131, construed in light of this opinion, is constitutional.

5. In a paternity case the record is reviewed and the evidence is held insufficient to support the verdict and judgment that the defendant was the father of the child.

Louis S. Wexler, of Wexler, Wingfield & Zemites, Shawnee Mission, argued the cause and was on briefs, for appellant.

David R. Gilman, Overland Park, argued the cause, for appellees.

MILLER, Justice:

This is a paternity case, filed pursuant to K.S.A. 38-1101 et seq., by the State of Kansas ex rel. Sheila Hausner against defendant Paul Blackman for a determination of paternity and for child support. A jury trial resulted in a verdict and judgment that defendant is the father of the minor child, Simon Hausner; support was ordered. Defendant appealed; the Court of Appeals, in a unanimous opinion, reversed. State ex rel. Hausner v. Blackman, 7 Kan.App.2d 693, 648 P.2d 249 (1982). We granted review.

The issues are: Is blood test evidence admissible to prove paternity and, if so, did the trial court commit prejudicial error in admitting the particular blood test evidence in this case? Is K.S.A. 23-131 constitutional? And is the verdict and judgment in this case supported by substantial competent evidence? The Court of Appeals held that expert testimony, resulting from certain sophisticated and recently-developed blood test examinations, is admissible to show the probability of paternity, but that the trial court erred in admitting the specific blood test evidence offered in this case; that K.S.A. 23-131 is constitutional; and that the evidence was insufficient to support the verdict. We agree.

Expert opinion, based upon the results of blood tests, has been received in paternity cases for perhaps the last fifty or sixty years, but until recent years that evidence has been admissible only for the purpose of showing that the putative father could not be the father of the child; as a general rule, it was admissible only to show nonpaternity. The following summary of the development of blood tests and the value of blood test evidence is given in the following quotation from Chief Justice Burger's unanimous opinion in the case of Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981):

"The discovery of human blood groups by Dr. Karl Landsteiner in Vienna at the beginning of this century, and subsequent understanding of their hereditary aspects, made possible the eventual use of blood tests to scientifically evaluate allegations of paternity. P. Speiser & F. Smekal, Karl Landsteiner 89-93 (1975). Like their European counterparts, American courts gradually recognized the evidentiary value of blood grouping tests in paternity cases, and the modern status of such tests has been described by one commentator as follows:

" 'As far as the accuracy, reliability, dependability--even infallibility--of the test are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority. There is, in fact, no living authority of repute, medical or legal, who may be cited adversely.... [T]here is now ... practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity.' S. Schatkin, Disputed Paternity Proceedings § 9.13 (1975).

"The application of blood tests to the issue of paternity results from certain properties of the human blood groups and types: (a) the blood group and type of any individual can be determined at birth or shortly thereafter; (b) the blood group and type of every individual remain constant throughout life; and (c) the blood groups and types are inherited in accordance with Mendel's laws. Id., § 5.03. If the blood groups and types of the mother and child are known, the possible and impossible blood groups and types of the true father can be determined under the rules of inheritance. For example, a group AB child cannot have a group O parent, but can have a group A, B, or AB parent. Similarly, a child cannot be type M unless one or both parents are type M, and the factor rh' cannot appear in the blood of a child unless present in the blood of one or both parents. Id., §§ 5.03 and 6.02. Since millions of men belong to the possible groups and types, a blood grouping test cannot conclusively establish paternity. However, it can demonstrate nonpaternity, such as where the alleged father belongs to group O and the child is group AB. It is a negative rather than an affirmative test with the potential to scientifically exclude the paternity of a falsely accused putative father.

"The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. Miale, Jennings, Rettberg, Sell, & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Family L.Q. 247 (Fall 1976). The joint report recommended the use of seven blood test 'systems'--ABO, Rh, MNSs, Kell, Duffy, Kidd, and HLA--when investigating questions of paternity. Id., at 257-258. These systems were found to be 'reasonable' in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men. Id., at 254, 257-258.

"The effectiveness of the seven systems attests the probative value of blood test evidence in paternity cases. The importance of that scientific evidence is heightened because '[t]here are seldom accurate or reliable eyewitnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability.' Larson, Blood Test Exclusion Procedures in Paternity Litigation: The Uniform Acts and Beyond, 13 J.Fam.L. 713 (1973-1974). As Justice Brennan wrote while a member of the Appellate Division of the New Jersey Superior Court:

" '[I]n the field of contested paternity ... the truth is so often obscured because social pressures create a conspiracy of silence or, worse, induce deliberate falsity.

" 'The value of blood tests as a wholesome aid in the quest for truth in the administration of justice in these matters cannot be gainsaid in this day. Their reliability as an indicator of the truth has been fully established. The substantial weight of medical and legal authority attests their accuracy, not to prove paternity, and not always to disprove it, but "they can disprove it conclusively in a great many cases provided they are administered by specially qualified experts"....' Cortese v. Cortese, 10 N.J.Super. 152, 156, 76 A.2d 717, 719 (1950)." 452 U.S. at 6-8. (Emphasis supplied.)

Little v. Streater dealt with the claim of an indigent defendant, named as the father of an illegitimate child in a paternity action filed in Connecticut, of the denial of his due process and equal protection rights under the Fourteenth Amendment by application of a Connecticut statute which denied him access to blood tests for which he could not pay. The Supreme Court held that the cost requirement of the state statute did in fact effect a denial of the appellant's constitutional rights. While the issue here differs from that in Streater, the opinion of the court demonstrates the importance of blood test evidence to establish nonpaternity, and the quoted portion of the opinion is illuminating.

In 10 Am.Jur.2d, Bastards §§ 32 and 118, we find the following discourse on blood test evidence:

"Serological blood tests to determine type or group are of especial value in cases of disputed paternity because, although they cannot indicate with precision that a particular person is the father of the child whose paternity is in issue, in many instances they can establish that an alleged father could not have been the sire. The accuracy of such tests, when performed and interpreted by properly qualified persons, is generally recognized and the results are generally held admissible for the purpose of establishing nonpaternity." § 32, p. 867.

"Blood grouping tests are particularly significant in bastardy proceedings, because when properly administered and interpreted, the results may categorically exclude the paternity of the putative father, and in some jurisdictions the courts may require the mother, child, and putative father in filiation proceedings to submit to blood grouping tests....

"The general rules that evidence of blood grouping test results excluding paternity is admissible, and that evidence of results failing to establish nonpaternity is inadmissible, apply to bastardy proceedings." § 118, pp. 928-29.

The rule with respect to the receipt in evidence of blood test results in bastardy proceedings is stated in 10 C.J.S., Bastards § 82 (Supp.1982), as follows:

"[I]t has been held that even in the absence of statutory authority, the results of blood tests are admissible in evidence.... In any event, the results of a blood test are admissible in evidence only where definite exclusion or nonpaternity is established." (Emphasis supplied.)

In 1 Wigmore on Evidence § 165a (3rd ed. 1940), we find the following comment:

"[T]he blood-composition of a child may...