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Blood and tissue testing, especially DNA matching, have become important elements of both criminal and paternity or maternity litigation. Such scientific testing has become so important that it has taken on aspects that may cause it to benefit or to do harm to the judicial process or to any given case. This article focuses on the value and the dangers surrounding this interesting subject.

The 1995 Louisiana Supreme Court decision in Pace v. State reemphasized the importance of DNA testing generally and the significance of blood and tissue genetic testing used to exclude paternity. The advances in and importance of genetic testing have been recognized and supported by courts across the nation. For example, Ohio courts have taken judicial notice of the accuracy of DNA testing. The court noted that an illegitimate child may prove paternity by genetic testing and allowed the alleged father to be disinterred to conduct the test. The court stated that “the accuracy and infallibility of the DNA test are nothing short of remarkable,” and proclaimed that the proof problems which had plagued testing cases should no longer deprive an illegitimate child of the opportunity to prove paternity.

In 1991, the Louisiana Supreme Court, in In re J.M., also noted that “. . . the modern status (of blood grouping tests in paternity cases) has been described by one commentator as follows: As far as 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 . . . . (T)here is now . . . practically universal and unanimous judicial willingness to give decisive and controlling evidentiary weight to a blood test exclusion of paternity.”'

This statement may be true to the limited extent that the testing procedure in that case was completed correctly; blood or tissue testing always depends on the quality of the testers and of the testing procedures. Also, the court's comment relates only to exclusion of paternity. When the testing is used to “prove paternity,” it relies on statistical probability. This, clearly, is more problematical. The accuracy of the “scientific” claim obviously depends not only on the quality of the evidence and the quality of its collection and treatment during storage and testing, but also on the quality of the statistical evidence and the capacity of the presenter of that evidence to allow the trier of fact to understand its actual validity and appropriate impact.

Publication Citation

57 La. L. Rev. 379 (1997).