# Amicus Curiae Brief — Rivera v. Minnich

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 483 U.S. 574

## Text

Supreme Court, U.S.
EILED

No. 86-98

FFB- 9 1987
IN THE : |
SUPREME COURT OF THE UNITED STATES YOSEPH F. SPANIOL, JR.

CLERK

October Term 1986

GREGORY L. RIVERA,
Appellant

Ve

JEAN MARIE MINNICH,
Appellee.

On Appeal from the Supreme
Court of Pennsylvania

BRIEF FOR THE PEOPLE OF THE STATES
OF CALIFORNIA, FLORIDA, ILLINOIS,
KANSAS, MICHIGAN, MINNESOTA, MONTANA,
NEVADA, SOUTH DAKOTA, TENNESSEE;

THE APPELLATE COMMITTEE OF THE
CALIFORNIA FAMILY SUPPORT COUNCIL,
AND THE APPELLATE COMMITTEE OF

THE CALIFORNIA DISTRICT ATTORNEY'S
ASSOCIATION AS AMICI CURIAE

JOHN K. VAN DE KAMP, Attorney General
of the State of California
STEVE WHITE, Chief Assistant
Attorney General
JAY BLOOM,
Supervising Deputy Attorney General
M. HOWARD WAYNE,
Deputy Attorney General

110 West A Street, Suite 700
San Diego, California 92101
Telephone (619) 237-7765

John S Higgins, Jr.

Deputy District Attorney
Appellate Committee of the
California Family Support Council

and

California District Attorneys'
Association

2530 S. Mooney Boulevard
Visalia, California 93277

Joseph I. Lieberman
Attorney General
State of Connecticut
30 Trinity Street
Hartford, Conn 06105

Marlon Seay, Director

Department of Health and Rehabilitative
Services

Division of Child Support Enforcement
1317 Winewood Boulevard

Tallahasee, Florida 32399-0700

Jim Jones

Attorney General
State of Idaho
Statehouse Mail
Boise, Idaho 83720

Louisiana Department of Health and
Human Services

Gordon Hood, Director, Child Support
Enforcement Services Program

P.O. Box 94065

Baton Rouge, Louisiana 708044065

Neal F. Hartigan
Attorney General

State of Illinois

100 West Randolph Street
Chicago, Illinois 606021

Kansas Department of Social and
Rehabilitation Services

Child Support Enforcement Program
2700 West 6th Street

Topeka, Kansas 66606

Dale Threehouse

Michigan Family Support Counc: l
2162 Village West

Lapeer, Michigan 48446

Frank J. Kelley

Michigan Attorney General
525 W. Ottawa Street
Lansing, Michigan 48913

Minnesota County Attorney's Association
Jean Gervel

Executive Director

40 N. Milton, Suite 100

St. Paul, Minnesota 55104

Michael R. Henry

Missouri Division of Child Su} port
Enforcement

P.O. Box 1527

Jefferson City, Missouri 65102

Kelly M. O'Sullivan

Child Support Enforcement Division
Department of Revenue

Helena, Montana

Brian McKay

Attorney General of Nevada
Heroes Memorial Building
Capitol Complex

Carson City, Nevada 89710

Roger A. Tellinghuisen

Attorney General of South Dakota
Capitol Building

Pierre, South Dakota 57501

W. J. Michael Cody

Attorney General of Tennessee
450 James Robertson Parkway
Nashville, Tennessee 37219-5025

INDEX

Page
QUESTION PRESENTED ....e«.« © e « « 4
INTEREST OF AMICI CURIAE .....-. 2
ARGU MENT . * 7 i o . > . > > . . > . 7
THE STANDARD OF PROOF OF A
PREPONDERANCE OF THE EVIDENCE
IN ACTIONS TO ESTABLISH
PATERNITY DOES NOT IMPAIR THE
RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION . 7
A. The Private Interests
eS gb oo 6 @ © e@ 6 ee 10
B. Risk of Erroneous
DODELVOCION « © oe eo eo eo 15
Se The Governmental Interest 23

CONCLUSION . . « «© © © © © © © © @ «@ 26

Te

TABLE OF AUTHORITIES

Page
CASES

Addington v. Texas
441 U.S. 418, 423 (1979) passim,
Artibee v. Cheboygan Circuit Judge
(1976) 397 Mich. 54, 243 N.W.2d 248)

22
B. v. D.
(1979) 99 Misc.2d 1085, 418 N.Y.S.2d 271)

22
Bartlett v. Commonwealth of Kentucky
(Sup.Ct. 1986) 705 S.W.2d 470 17
Biley v. Williems
(July 8, i986) S.W.2d

18
Bowling v. Coney
(1983) 91 A.D.2d 1195, 459 NY.2d 183

18
Bradley v. Houston
(1984) 12 Ark. App.351, 676 SW 2d 746

16
Callison v. Callison
(Sup.Ct. 1984) 687 P.2d 106 18

Carlyon v. Weeks
(Ct. App. 1980) [Florida] 387 So.2d 465
16

-~iii-

TABLE OF AUTHORITIES (Continued)

Cole v. Cole
(1985) 74 N.C.App. 247 328 S.E.2d 446

Commonwealth v. Beausoleil
(1986) 397 Mass. 206, 490 N.E.2d 788

Corley v. Rowe
(1984) 280 S.C. 338, 12 S.

rry
Nh
oF

J
ho
©

Crain v. Crain
(1983) 104 Idaho 666; 662 P.2d 530

Cramer v. .iorrison

(1974) 88 Cal.App.3d 873, 153 Cal.Rptr.

865
Cutchember v.

r
(1983) 466 A.2d
Columbia |

Cir. 1923)

Haines v. Shanholtz
(1984) 57 Md.Apo.92, 468 A.2d 1365

Hankerson v. Moody
(1985) 229 Va. 270, 329 S.E.2d 791

)} 476 N.E.2d 127 [Indiana]

18

17

18

16

+

a» #

20

17

19

-iv-

TABLE OF AUTHORITIES (Continued)
Hennepin County Welfare Board v. Ayers
(Sup.Ct. 1981) 304 N.W.2d 879
Hepfel v. Bashaw

(1979) 279 N.W. 342)

Imms v. Clarke
(Mo.App. 1983) 654 S.W.2d 281

In re B.C.
(1974) ll Cal.3d 679, 688

In re E.G.M.
(Ct.App. 1983) 647 S.W.2d 74

In re Winship
397 U.S. 358 (1970)

J .H. v. M.H.

17

22

18

13

18

(1980) 177 N.J. Super.436, 426 A.2da 1073

Kennedy v. Wood
(1982 Ind. App.) 439 N.E.2d 1367)

18

21

Lassiter v. Department of Social Services

452 U.S. 18, 27 (1981)

Little v. Streater
452 U.S. 1, 13 (1980) 9, 10,

Mathews v. Eldridge
424 U.S. 319 (1976)

Mills v. Habluetzel
456 U.S. 91 (1982)

Moore v. McNamara
(1986) 201 Conn. 16, 513 A.2d 660

9

23

15

16

oe ae ee ems:

-V-

TABLE OF AUTHORITIES (Continued)

Owens v. Bell
(1983) 6 Ohio St.3d 46, 451 N.E.2d 241
18

People v. Alzoubi
(1985) 133 I11.App.3d 806, 479 NE.2d 1208

17
Phillips v. Jackson
(Sup.Ct. 1980) 615 §.2d 1228 18
Pizana v. Jones
(1983) 127 Mich.App. 123, 339 N.W.2d 1

17
Plemel and State of Oregon v. Walter
(1986) 80 Or.App. 250, 721 P.2d 474 18
Raines v. White
(1981) 248 Ga. 406; 284 SE.2d 7 16

Reynolds v. Kimmons
(1977) 569 P.2d 799), 154 Cal.Rptr. 524
' 21

Salas v. Cortez
(1979) 24 Cal.3d 22 154 Cal.Rptr 529,
cert den. 444 U.S. 900) 21

Santosky v. Kramer
455 U.S. 745, 754 (1982) 9, 12, 13

Stanley v.Illinois
(1972) 405 U.S. 645, 651. 13

State of Arizona v. Bravo
(1984) 139 Ariz. 393, 678 P.2d 974 16

State of Iowa v. Vinsand
(Sup. Ct. 1982) 318 N.W.2d 208 17

-VL-
TABLE OF AUTHORITIES (Continued)

State of Maine v. Thompson
(fup.Ct. 1986) 503 A.2d 689 17

State of New Mexico v. Coleman
(July 29, 1986) 723 P.2d 971 18

State of Washington v. James
(1984) 38 Wash.App. 264, 686 P.2d 1097

19
State Through Department of Health v.
Smith (Ct. App. 1984) 459 S.2d 146

17
State v. Unterseher
(Sup.Ct. 1977) 255 Ii.W.2d 882

18
Ze Ve Be
(1979) 169 N.J. Super. 209, 404 A.2d 653

22
Tice v. Richardson
(1982) 7 Kan.App.2d 509, 644 P.2d 490

17

Turek v. Hardy
(1983) 312 Pa. Supe:. 158, 458 A.2d 562
18

-vii-

TABLE OF AUTHORITIES (Continued)

MISCELLANEOUS
Alabama -- Ala. Code 26-17-12 19
Colorado -- C.R.S. 13-25-126 19
Delaware -- Del. Code Title 13, § 81ll
19
Hawaii -- H.R.S. § 584-12 19

Joint AMA-ABA Guidelines: Present Status
of Serological Testing, 10 Family L.Q.

247 (1976). 21
Montana -- M.C.A. § 40-6-113; 19
Nevada -~- N.R.S. 126.131 19
New Hampshire -- RSA § 522:4 19
Pennsylvania Civil Procedure Support Law
Act No. 1978-46, P.L. 106. 11
Rhode Island -- Gen.L. § 15-8-11l 19
Senate Rept. No. 93-1356

(1974) at p. 52. 24
Social Service Amendments of 1974

(Pub.L. 93-647) 23
Uniform Parentage Act, § 14 12
Uniform Parentage Act, § 15(e) 7
Uniform Parentage Act, § 19 22
Vermont ~-- Vt. Stats. Title 15 § 304

19

-viii-
TABLE OF AUTHORITIES (Continued)

West Virginia -- W.Va. Code 48A-6-3

Wisconsin -- W.S.A. §§ 767.47 (1) (d)
767.48; 885.23

Wyoming -- Wyo. Stats. § 14-2-110

19

19

19

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

No. 86-98

GREGORY L. RIVERA,
Appellant

Ve

JEAN MARIE MINNICH,
Appellee.

On Appeal from the Supreme
Court of Pennsylvania

BRIEF FOR THE PEOPLE OF THE STATE OF
CALIFORNIA, FLORIDA, ILLINOIS,
KANSAS, MICHIGAN, MINNESOTA,
MONTANA, NEVADA, SO. DAKOTA,
TENNESSEE, THE APPELLATE COMMITTEE
OF TEE CALIFORNIA FAMILY SUPPORT
COUNCIL AND THE APPELLATE COMMITTEE
OF THE CALIFORNIA DISTRICT
ATTORNEYS ASSOCIATION AS AMICI
CURIAE

QUESTION PRESENTED
Does the law of the State of
Pennsylvania which, consistent with the
law of at least 40 states permitting

paternity to be established by the

~

preponderance of the evidence, violate
the Due Process Clause of the Fourteenth
Amendment of the United States

Constitution?

INTEREST OF AMICI CURIAE

This case presents a significant
issue regarding the standard of proof to
be applied in actions to establish
paternity. The vast majority of states,
whether by statutory or case law, rely on
a standard of preponderance of the
evidence. Appellant seeks to require a
standard of clear and convincing
evidence, which is relatively uncommon in
Civil cases.

The issue of establishment of
paternity is a matter of great public
concern. The rate of out-of-wedlock
births has increased dramatically in the

United States. In 1960 only 5 percent of

wie

births were out of wedlock; by 1981 the
number had increased to 19 percent.

(Click, "American Household Structure in

Transition,” Family Planning Perspectives
(Sept/Oct 1984) p. 206.) Nonmarital
births have serious repercussions for the
children born out of wedlock, for their
mothers and for the taxpayers.

Harry D. Krause, a professor of law
at the University of Illinois, wrote in
Child Support in America, The Legal

Perspective (1981):

"All abandoned children are
in the same straits regarding their
need for support and to locate
an absent parent. The child of
unmarried parents, however,
struggles against the further
obstacle of uncertain paternity
and a long (though fortunately
nearly lost) tradition of legal
discrimination. Within the
context of the child support
enforcement problem, special
emphasis thus must be placed
upon those children who, in
addition to locating their
father and making him pay,
must first identify him legally.”
(Id., at p. 103.)

willie

A child whose paternity is
established is in a position to receive
numerous benefits including access to
entitlement programs (e.g., Social
Security, veteran's benefits) and receipt
of child support.

Out-of-wedlock births seriously
impact on the mothers of the children.
Teenagers account for more than half of
all nonmarital births in the United
States. (U.S. Department of Health and
Human Services, National Center for
Health Statistics, Vital Statistics of
the United States, published in
Statistical Abstract of the United States
(1981), p. 65.) Many of these mothers do
not complete high school and lack
marketable skills. Typically, they enter
a pattern of unemployment, poverty,
welfare dependency and repeated

pregnancies. (U.S. Department of

'
wi
j

Commerce, Bureau of the Census, Marital
Status and Living Arrangements. )

Finally, there is the impact on
taxpayers. It is estimated that 60
percent of the children born out of
wedlock who are not adopted receive
welfare. (U. S. Report of the Census,
Child Support and Alimony; Current
Population Reports, Rept. 112; U.S.
Bureau of the Census.) The realization
that the public is carrying a weighty
financial burden which ought to be
assumed by parents resulted in enactment
of strong child support enforcement
legislation at the federal level and
enhanced child support enforcement
activities by the states.

The People of the states filing this
brief have a significant responsibility
in protecting the interest of children

born out of wedlock, the rights of their

-6-

mothers in obtaining equitable support
from their fathers, and the concerns of
the taxpayers in the preservation of
public treasuries from making payments
which should be made by persons
responsible for the support of their own
children.

Appellant's position, should it
prevail, would make it more difficult for
the states to carry out their
responsibility in the establishment of
paternity by imposing a higher, and less
Clear, burden of proof. The interest of
alleged fathers should not be permitted
to outweigh the vital interest of
children, mothers and the public. This
would be the result if a standard greater
than a preponderance of the evidence were

required.

éFe

ARGU MENT

THE STANDARD OF PROOF OF A
PREPONDERANCE OF THE

EVIDENCE IN ACTIONS TO
ESTABLISH PATERNITY DOES

NOT IMPAIR THE RIGHT TO

DUE PROCESS OF LAW AS
GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE CONSTITUTION

Pennsylvania, as well as the vast
majority of states, provides that the
establishment of paternity is a civil
proceeding. This is in conformity with
the Uniform Parentage Act, which
provides, in pertinent part, that an

action brought under its purview "is a

Civil action governed by the rules of

civil procedure." (Uniform Parentage Act,

§ 14.) The standard of proof in most
Civil actions is the preponderance of

evidence test.

A preponderance of the evidence test

for actions to establish paternity
comports with the Due Process clause of

the Fourteenth Amendment. In Addington

-8-

v. Texas 441 U.S. 418, 423 (1979), this
Court noted that the purpose of a
standard of proof, as embodied in the Due
Process Clause, is to "‘instruct the
factfinder concerning the degree of
confidence our society thinks he should
have in the correctness of factual
conclusions for a particular type of

action.'”" (Quoting In re Winship 397 U.S.

358 (1970),concurring opinion of Harlan,
J., at 370.) In Mathews v. Eldridge 424
U.S. 319 (1976), this Court, in analyzing
whether due process requirements mandated
pre-termination hearings in regards to
Social Security disability payments,
considered: 1) the private interest that
would be affected by the official action;
2) the risk of an erroneous deprivation
of such interests through the procedures
used, and the probable value, if any, of

additional or substitute procedural

-*

safeguards; and 3) the governmental
interest, including the function

involved and the fiscal and
administrative burden that the additional
or substitute requirements would entail.
This Court has utilized these factors in
considering the due process requirements
for the burden of proof in involuntary

commitment proceedings (Addington v.

Texas, supra, 441 U.S. 418); the right to
appointed counsel in actions for the
termination of parental rights (Lassiter
v. Department of Socja]l Services 452 U.S.
18, 27 (1981); the burden of proof
required for the termination of parental

rights (Santosky v. Kramer 455 U.S. 745,

754 (1982); and allocation of blood test
costs in paternity actions (Little v.
Streater 452 U.S. 1, 13 (1980). A
Similar analysis is applicable to the

issue raised herein.

-10-

A. The Private Interests Affected

The private interests at stake are
substantial; but they are substantial not
only for alleged fathers, but also for
the children and their mothers.

In Little v. Streater, supra, 452
U.S. at page 13, this Court held that
the putative father had a pecuniary
interest in avoiding substantial support
obligations, a liberty interest which
could be threztened by possible sanctions
for noncompliance, and an interest in the
creation of the parent-child
relationship. However, these interests
were defined in the context of whether an
indigent defendant in a paternity action
should be required to forgo blood tests
due to his inability to pay for such
tests.

A substantial interest of a putative

father in a paternity action is to avoid

atte
the financial obligations which result
from a determination he is the father of
the child. This is not different from
most other civil actions, where the
defendant has a strong desire not to
become liable to the plaintiff for a
large sum of money. Due process req.vires
no more than a preponderance test in

those actions. (Addington

v. Texas, supra, 441 U.S. at 423.)

The threat of loss of liberty is

more problematical. Effective June 27,
1978, the Pennsylvania Civil Procedure
Support Law abolished the right to a
Criminal proceeding on the issue of
paternity. (Act No. 1978-46, P.L. 106.)

A determination of paternity does
not place a defendant's liberty at peril.
That would require a subsequent
intervening act; the willful refusal to

pay a support order by a person with the

atte

financial ability to pay. A father with
a limited ability to pay support can have
his obligation adjusted to fit his
ability (Uniform Parentage Act § 15(e)),
and even in the absence of ability to
pay, the child may gain access to
entitlement payments.

Moreover, any number of orders
arising in civil cases, such as
injunctive orders, may be
established by a preponderance of
evidence even though violation may result
in the loss of liberty. Furthermore, in
analyzing the private interests affected,
the interest of the child and the mother

must be considered. In Santosky v.

Kramer, supra, 455 U.S. at p. 745, it was

held:

7 -in any given
proceeding, the minimum standard of
proof tolerated by due process
requirements reflect not only
the weight of the private and
public interests affected but

vite

also a societal judgment about
how the risk of error should
be distributed between the
litigants.”
In a paternity proceeding, unlike tle
parental rights termination considered in

Santosky, the private interest of tle

child (and of the mother) is not parallel
but in fact, adverse to, the intere:t of
the defendant in the factual
determination of paternity. The interest
in maintaining a parent-child

relationship has been deemed "a
compelling one, ranked among the most

basic of civil rights. (In se B.C,

(1974) 11 Cal.3d 679, 688; 114 Cal.Fptr.

444, 456; see Stanley v. Illinois (1]972)

405 U.S. 645, 651.)

The preponderance of evidence
standard indicates society's conclusion
that litigants should share the risk of
error in roughly equal fashion.

(Addington v. Texas, supra, 441 U.S. at

» hha

p. 423.) Where the interest of the child
and of the mothe. are at least as great
as the interest of the putative father,
the risk of error should be shared in
roughly equal fashion. This is not a

situation, such as in Addington, where

the risk of error to the defendant is
significantly greater than any possible
harm to the adverse party.

Moreover, it must be noted that the
state is not involved in all paternity
actions. The effect of increasing the
burden of proof to clear and convincing
evidence would impact on plaintiffs
including mothers and children not
represented by public entities whose
interest in justice should not be
diminished in favor of an alleged
father's interest. A test of
preponderence of the evidence provides

for an equal sharing of the risk.

5 =

B. Risk of Erroneous Deprivation

The risk of erroneous deprivation as
the result of a burden of proof of the
preponderance of the evidence has been
substantially minimized by both
scientific and procedural advances.
Moreover, such erroneous determinations
as do occur would not be prevented by the
imposition of a standard of clear and
convincing evidence.

In a concurring opinion in Mills v.

Habluetzei 456 U.S. 91 (1982), Justice

O'Connor noted that “recent scientific
developments in blood testing
dramatically reduce the possibility that
a defendant will be falsely accused of
being the illegitimate child's father.”
(Id., at 104, fn. 2.) Indeed, in the
overwhelming majority of cases,
scientific evidence is available which

drastically reduces the risk of error in

-16-

any paternity proceeding. The evidence
is available to be used as probative
evidence of paternity in an overwhelming
majority of states including
Pennsylvania. That blood tests as
evidence of probability of paternity has
achieved almost universal acceptance is
illustrated by the fact that courts in 34
states and the District of Columbia have
upheld the affirmative use of paternity
tests: §tate of Arizona v. Brayo (1984)
139 Ariz. 393, 678 P.2d 974; Bradley v.
Houston (1984) 12 Ark.App.35l, 676 SW 2d
746; Cramer v. Morrison (1974) 88
Cal.App.3d 873, 153 Cal.Rptr. 865; Moore
v. McNamara (1986) 201 Conn. 16, 513 A.2d
660; Cutchember v. Payne (1983) 466 A.2d
1240, [District of Columbia]; Carlyon v.
Weeks (Ct. App. 1980) [Florida]; 387

So.2d 465; Raines v. White (1981) 248 Ga.

ol Pe

406; 284 SE.2d 7; Crain v. Crain (1983)
104 Idaho 666; 662 P.2d 530;

People v. Alzoubi (1985) 133 I11.App.3d

806, 479 NE.2d 1208; Davis v. State (Ct.

App. 1985) 476 N.E.2d 127 [Indiana];

State of Iowa v. Vinsand (Sup. Ct. 1982)

318 N.W.2d 208; Tice v. Richardson

(1982) 7 Kan.App.2d 509, 644 P.2d 490;

Bartlett v. Commonwealth of Kentucky

(Sup.Ct. 1986) 705 S.W.2d 470; State

Through Department of Health v. Smith

(Ct. App. 1984) 459 S.2d 146 [Louisiana];

State of Maine v. Thompson (Sup.Ct. 1986)

503 A.2d 689; Haines v. Shanholtz (1984)

57 Md.App.92, 468 A.2d 1365; Commonwealth

v. Beausoleil (1986) 397 Mass. 206, 490

N.E.2d 788; Pizana v. Jones (1983)

127 Mich.App. 123, 339 N.W.2d 1; Hennepin

County Welfare Board v. Ayers (Sup.Ct.

1981) 304 N.W.2d 879 [Minnesota] ;

oie

Imms v. Clarke (Mo.App. 1983) 654 S.W.2d

281; J.H. v. M.-H. (1980) 177 N.J.

Super.436, 426 A.2d 1073; State of New

Mexico v. Coleman (July 29, 1986) 723

P.2d 971; Bowling v. Coney (1983) 91

A.D.2d 1195, 459 NY.2d 183 [New York];
Cole v. Cole (1985) 74 N.C.App. 247 328

S.E.2d 446; State v. Unterseher (Sup.Ct.

1977) 255 N.W.2d 882 [North Dakota];
Owens v. Bell (1983) 6 Ohio St.3d 46, 451

N.E.2d 241; Callison v. Callison (Sup.Ct.

1984) 687 P.2d 106; Plemel and State of

Oregon v. Walter (1986) 80 Or.App. 250,

721 P.2d 474; Turek v. Hardy (1983) 312

Pa. Super. 158, 458 A.2d 562; Corley v.
Rowe (1984) 280 S.C. 338, 12 S.E.2d 720;

Biley v. Williams (July 8, 1986)

S.W.2d [Tennessee]; In re E.G.M.

(Ct.App. 1983) 647 S.W.2d 74; Phillips v.

Jackson (Sup.Ct. 1980) 615 P.2d 1228

[Utah];

-19-

Hankerson v. Moody (1985) 229 Va. 270,
329 S.E.2d 791; Stat W ington v.

James (1984) 38 Wash.App. 264, 686 P.2d
1097.

In addition, 12 other states have
statutes providing for the admissibility
of blood test evidence:

Alabama -- Ala. Code 26-17-12;
Colorado -- C.R.S. 13-25-126;

Delaware -- Del. Code Title 13, § 811;
Hawaii -- H.R.S. § 584-12;
Montana -- M.C.A. § 40-6-113;

Nevada -- N.R.S. 126.131;

New Hampshire -- RSA § 522:4;

Rhode Island -- Gen.L. § 15-8-1ll;
Vermont -- Vt. Stats. Title 15 § 304;
West Virginia -- W.Va. Code 48A-6-3
Wisconsin -- W.S.A. §§ 767.47 (1) (d)
767.48; 885.23;

Wyoming -- Wyo. Stats. § 14-2-110.

-20-
State courts across the country have
held, following Frye v. United States,
293 F. 1013 (D.C. Cir. 1923) that
inclusionary blood test results, and the
statistical probabilities drawn
therefrom, are admissible in paternity
litigation. Indeed, the Supreme Judicial
Court of Massachusetts, while noting that
"[t]he admission of evidence of
statistical probability is disfavored in

this Commonwealth," Commonwealth v.

Beausoliel, 397 Mass. 206, 490 N.E.2d
788, 795 n. 15, also commented in holding
HLA results to be admissible, "those
courts in other jurisdictions that have
determined the admissibility of
inculpatory HLA test results by reference

to Frye have concluded unanjmously that

Such evidence jis generally accepted as

reliable in the scientific community,”

=21-

490 N.E.2d at 794 (footnote omitted;
emphasis added).

Thus, in modern paternity
litigation, with the scientific
procedures available, the risk of an
erroneous determination is extremely
small despite the nature of the
nonmedical evidence. (See Joint AMA-ABA
Guidelines: Present Status of Serological
Testing, 10 Family L.Q. 247 (1976).)

Additionally, there is an increasing
tendency to require the appointment of
counsel for indigent defendants in
paternity actions where the state appears
as a party or on behalf of the mother or

child: Alaska (Reynolds v. Kimmons

(1977) 569 P.2d 799), 154 Cal.Rptr. 524;
California (Salas v. Cortez (1979) 24
Cal.3d 22 154 Cal.Rptr 529, cert den. 444
U.S. 900); Indiana (Kennedy v. Wood

(1982 Ind. App.) 439 N.E.2d 1367);

ee en

pee eens

-29-

Michigan (Agtjbee v. Cheboygan Circuit
Judge (1976) 397 Mich. 54, 243 N.W.2d
248); Minnesota (Hepfel v. Bashaw (1979)
279 N.W. 342); New Jersey (T. v. S,
(1979) 169 N.J. Super. 209, 404 A.2d 653;
New York (B. v. D. (1979) 99 Misc.2d
1085, 418 N.Y.S.2d 271); and the Uniform
Parentage Act, section 19.

The combination of procedural and
scientific advances to an accused father

substantially minimize the risk of an

erroneous determination. As this Court

observed in Addjngton v. Texas, supra,
441 U.S. at pages 417-418:

"Candor suggests that, to
a degree, efforts to analyze
what lay jurors understand
concerning the differences
among these three tests
[preponderance, clear and
convincing and beyond a
reasonable doubt] ... may
well be largely an academic
exercise; there are no directiy
relevant empirical studies.
We probably can assume no more than
that the difference between a
preponderance of the evidence

23.

and proof beyond a reasonable

doubt probably is better

understood than either of

them in relation to the

intermediate standard of

clear and convincing evidence."

(Fn. omitted. )

Thus, the probable gain from
appellant's proposed change in the burden
of proof wculd be an increase in
confusion rather than a decrease in
erroneous determinations of paternity.

C. The Governmental Interest

The states have a valid interest in
the welfare of a child born out of
wedlock and who is receiving public
assistance, as well as in securing
support for the child from those legally
responsible. Additionally, it shares the
interest of the child in an accurate and
just determination of paternity. (Little
v. Streater, supra, 452 U.S. at p. 14.)
In enacting the Social Service Amendments

of 1974 (Pub.L. 93-647), the Senate

-24-

Committee on Finance noted "a child born
out-of-wedlock has the right to have its
paternity ascertained in a fair and
efficient manner [and] .. . the interest
primarily at stake in the paternity
action. ..#is.. . that of the child.”
(Senate Rept. No. 93-1356 (1974) at p.
52.) Clearly, the governmental interest
in promoting the best interest of the
child is at stake.

The states also have a considerable
interest in seeing that the rights of the
mother to receive child support are
vindicated. The receipt of child support
is often the difference between an
independent life and welfare dependency.

In Addjngton v. Texas, supra, this

Court found that the preponderance of
evidence test was insufficient to uphold

the due process rights of individuals

faced with civil commitment. The Court

24.

held the individual should not be asked
to share equally with society the risk of
error when the possible injury to the
individual is significantly greater than
any possible harm to the state. (Id., at
p. 427.) The instant situation is very
different. There is the interest of the
child in ascertaining its parent and
obtaining the support to which it is
entitled; there is the interest of the
mother in receiving child support and
avoiding welfare dependency; there is the
interest of the states in protecting the
rights of its citizens and defending the
public coffers. The potential injury to
the alleged father is certainly no
greater than the potential injury to the
child, the mother, and the states.
Accordingly, a preponderance test is

justified and does not violate the due

» 26.

process clause of the Fourteenth
Amendment.
CONCLUSION

What is at stake is not the
defendant's loss of liberty, nor the
uprooting of his family relationship, nor
the loss of any vested right. The
primary issue is one of civil
relationship of a father to his child, to
the child's mother, and to the
governmental entity which may be
Supporting both. A preponderance test is
not only justified, but any other test
may be improper:

"Since the establishment

of the child's civil relation-

ship with its father is

involved, serious doubts must

be expressed as to the

constitutionality of ...

those civil paternity statutes

that raise the requirement of

proof to a level higher than

that required for other civil

actions." (Krause, supra,

Child Support in America,

at pp. 190-191, emphasis in
Text, fn. omitted.)

The decision of the Pennsylvania Supreme

Court below properly allocates the burden

of proof by requiring appellant's civil

obligation be established by a
preponderance of the evidence.
Accordingly, the judgment of that court
should be affirmed.

Dated: February 2, 1987

JOHN K. VAN DE KAMP, Attorney General of
the State of California
STEVE WHITE, Chief Assistant
Attorney General
JAY BLOOM,
Supervising Deputy Attorney General
M. HOWARD WAYNE,
Deputy Attorney General

Attorneys for Amici Curiae

a Cees

M. Howard Wayne
Deputy Attorney General

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0300%3A8. Public record. Not legal advice.