0300-423162
Decided by the Board February 25, 1953
Paternity — Admissibility of blood tests as evidence — United States citizenship, section 201(g) of the Nationality Act of 1940.
Blood tests are standard, scientifically accepted, objective methods for determining nonpaternity and their results are unanswerable if they are conducted by a person competent and experienced in making such experiments. However, the test shall be considered to be evidence only where definite exclusion of paternity is established and where the test is taken under approved conditions.
EXCLUDED:
Act of 1924 — No. visas.
E.O. 8766 — No passports.
BEFORE THE BOARD
Discussion: This is an appeal from a decision of a board of special inquiry at New York, excluding appellant, L---- F---- F----, from admission to the United States.
Appellant arrived at New York on June 6, 1952, and applied for admission into the United States as a United States citizen under section 201(g) of the Nationality Act of 1940, as amended. That statute provides as follows:
SEC. 201. (g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had 10 years' residence in the United States or one of its outlying possessions, at least 5 of which were after attaining the age of 16 years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling 5 years between the ages of 13 and 21 years: Provided further, That if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of 16 years, or if he resides abroad for such a time that it becomes impossible for him to complete the 5 years' residence in the United States or its outlying possessions before reaching the age of 21, his American citizenship shall thereupon cease.
Appellant claims citizenship by virtue of the citizenship of his alleged father. It is conceded by the board of special inquiry that appellant's alleged father resided in the United States prior to the date of appellant's birth and that appellant arrived in the United States by the time he reached the age of 16 years. His alleged mother, a Chinese national, is now a lawful resident of the United States, having been admitted to this country on December 8, 1950. Appellant was held for hearings before a board of special inquiry which concluded that the relationship had not been established and therefore excluded him on the charges stated.
At the hearings testimony was given by appellant and his alleged parents. Their testimony was in accord. They testified that appellant was born in China on July 6, 1936, and that he is their child. The United States citizenship of the alleged father has been conceded by the Immigration and Naturalization Service on previous occasions.
Blood tests of the appellant were made at New York by representatives of the Public Health Service on June 30, 1952, and on August 12, 1952. Those tests disclose that appellant belongs to blood group A, according to one type of test, and is in blood type MN in another type of test. Tests were given the alleged father of the appellant by representatives of the Public Health Service at New York on July 11, 1952. He was also given a test by his own physician on August 19, 1952, in Washington, D.C. The results of both tests indicate that he comes within blood group A and blood type M. The mother was given a test by representatives of the Public Health Service at New York on July 15, 1952. She also was given a test by her own physician in Washington, D.C., on August 19, 1952. The results of the test show that she falls within blood group O and blood type M. At the conclusion of the hearing, counsel for appellant requested an opportunity to have further tests made but by letter dated September 13, 1952, he stated that tests made by private physicians had resulted in the same conclusions.
On the strength of these tests the board of special inquiry concluded, following charts set forth in exhibit 5 of this record ( Blood Grouping Tests in the New York Courts by Alexander S. Wiener, M.D., reprinted from U.S. Law Review, Dec. 1936) that the appellant cannot possibly be the blood son of the alleged father. The Board found that inasmuch as appellant had failed to establish United States citizenship he is an alien and citizen of China and therefore inadmissible to the United States because an immigrant not in possession of the necessary documents.
The only question before this Board is the admissibility of and the weight to be given the results of properly conducted blood tests. The admission in evidence of the results of these tests was objected to, and constitutes the basis for this appeal.
These tests have been recognized by the courts in Europe since 1924, their chief use being in paternity cases. Authorities writing and testifying describe enormous numbers of persons tested in the experiments which established the standards in this field. The tests are said to have been used in over 1,500 court cases in Vienna by 1929. In Germany they had been used in over 5,000 cases by 1929. In Great Britain they were used in two murder cases as early as 1930 and 1931. Shanks v. State 185 Md. 437, 163 A.L.R. 931, 45 A(2d) 85 (1945). The subject of the recognition of the value of blood tests by European tribunals is discussed at length in Determination of Paternity by Blood-Grouping Tests by Magdaline Schoch, 16 So. California, L.Rev. 187. Dr. Schoch states that Germany finally made blood tests compulsory by legislation for criminal proceedings in 1933 and for civil proceedings in 1938. Sweden had already taken this step in 1933, but only in respect to paternity suits of illegitimate children, and Denmark made similar provision in 1937. It is essential that we consider the nature of these tests and their meaning in order to determine their probative or evidentiary weight.
The first blood test in use was and is based on a classification of all human blood into four groups: A, B, AB, and O. Dr. Karl Landsteiner, later a Nobel prize winner, discovered around 1900 that the blood of every human being, without regard to race, sex or health, could be divided into these four groups. Group O includes approximately 45 percent of the population. Group A includes approximately 42 percent of the population. Group B includes approximately 10 percent of the population and group AB includes approximately 3 percent. By the laws of heredity a child inherits his blood grouping from either of his parents or from both. Thus, if a child has B blood and his mother has O blood his father must have had either B or AB blood. The following table shows the 10 possible combinations of the parents' blood groups and the kind of blood which their children cannot have, according to the Landsteiner-Bernstein theory. This same chart is set forth in 163 A.L.R. 923, in exhibit 5 of this record, in State v. Damm, 62 S.D. 123, 252 N.W. 7 (1933), and in other expositions of this subject.
Parents' blood groups: Groups of children not possible
A and A _________________ B, or AB. A and B _________________ None (i.e., all types possible). A and AB ________________ O. A and O _________________ B, or AB. B and B _________________ A, or AB. B and O _________________ A, or AB. AB and B ________________ O. AB and AB _______________ O. AB and O ________________ AB, or O. O and O _________________ A, B, or AB.
In addition, regardless of the blood type of the other parent, a man or woman with an O blood type cannot have children belonging to group AB, and vice versa, no person with an AB blood type can have an offspring with blood belonging to type O.
Following this chart, a man with O blood cannot be the father of a child with A B, or AB blood, where the blood of the mother is known to belong to group O.
In 1928 Landsteiner and Levine discovered two new genes in the red corpuscles which they called "M" and "N". These genes are entirely independent of the genes A and B. Every person has either an M or N gene or both M and N genes in his red blood cells. It has been established that M and N genes are transmitted from parents to child in accordance with the Mendelian law of inheritance. Neither gene M nor gene N can appear in the blood of a child unless it is present in at least one of its parents. On the basis of these discoveries it has been demonstrated that parents belonging to given blood types can only have children with certain type of blood and no other. It has also been shown that regardless of the blood type of the other parent, it is impossible for a type M parent to procreate a child belonging to type N, or for a type N parent to have a type M child. The possible combination of parents with different blood types and the excluded types of blood of their progeny is shown in the following table:
Blood type of parents: Types of children not possible
M and M _________________ N, or MN. M and N _________________ M, or N. M and MN ________________ N. N and N _________________ M, or MN. N and MN ________________ M. MN and MN _______________ None (all types possible).
For purposes of distinction the word "group" refers to the A-B classification, and the designation "type" is used to describe the M-N classification. (For discussions of the tests themselves and establishment of the standards, see Bibliography, Books and Articles, appended hereto.)
It will quickly be seen that the value of the test is chiefly of a negative character. That is, it can be used to disprove, not to prove, paternity. The affirmative value of the test is frequently said to be, not only slight, but highly prejudicial.
These tests are explained in clear and understandable fashion in exhibit 5 in this file, a reprint of Dr. Alexander Wiener's article.
In vast numbers of cases claimants to derivative citizenship come to the United States from areas where vital statistics are not maintained by a properly constituted authority. These cases always present a problem of identification. The consular authorities abroad and the immigration authorities in the United States must seek to discover from the testimony of the claimant and his witnesses whether or not he is, in truth, the child of the United States citizen and entitled to admission as such. Rarely can any of the testimony be said to be that of disinterested parties. Realizing the pain and cost of expatriation the courts have been loathe to declare any claimant an imposter. Out of this situation in the past half century has grown a system of attempting to establish relationship or discover fraud by comparing the testimony of an applicant with the prior testimony of his relatives in order to discover so-called "discrepancies" in testimony. Immigration authorities and the courts have been forced to examine endless testimony of an applicant's alleged lineal and collateral relatives, testimony describing the minutest details of family and village life in the attempt to discover whether the claimed relationship is sustained. Skillful "coaching" makes detection of fraud difficult, and the courts sometimes find records of "discrepancies" unsatisfactory evidence.
We have had to rely also on other unscientific evidence, such as "family resemblance" and old photographs, which may or may not be authentic. It is inevitable that mistakes have occurred. Some citizens have brought into the United States surprising numbers of their alleged progeny, while other rightful claimants may have been refused admission. The cost in time and money to the claimants, the Government and the shipping companies (who, under the law must pay the costs of the applicant in detention and the cost of returning him to his port of departure if he is excluded) has been enormous.
Two recent decisions describing the history, background and problems extant in these cases are Mar Gong v. McGranery, 109 F.Supp. 821 (N.D., Calif. December 13, 1952) and Ly Shew v. Acheson, 110 F.Supp. 50 (S.D., Calif., January 12, 1953). These cases are only two of some 716 suits pending under section 503 of the Nationality Law of 1940, 8 U.S.C.A. 903, seeking to establish the United States citizenship of applicants whose claims already have been rejected as inadequately supported by the State Department or the Immigration and Naturalization Service. As the court points out in those cases, these suits have jammed the dockets of the United States Courts of California.
This situation has long been known to all who work in this field. We are not justified in refusing to accept a method, proved, scientific and now widely recognized, which will assist in reducing the burden on the government in even a limited number of cases.
We have studied the available literature intensively before arriving at the conclusions set forth in the following discussion. In citing cases and commentary we have avoided, for the most part, using decisions involving admissibility of blood test evidence in criminal prosecutions (as for murder and rape). Blood tests were admitted as evidence in such cases before their value in establishing non-paternity was generally recognized by the courts in this country. Williams v. State, 143 Fla. 826, 197 So. 562 (1940).
There is no conflict among the courts at this time as to the admissibility in evidence of blood test results. The only conflict is as to the weight to be assigned the evidence once admitted.
The present status of the blood test as evidence in American jurisprudence varies all the way from the minimum weight allowed it in Berry v. Chaplin, 74 Calif.App. (2d) 652, 169 P. (2d) 442 (1946), where it was held to be merely expert opinion to be considered by the jury along with other evidence, to the weight accorded it by the courts of New York where the results of such tests are held to be conclusive.
The attitude of the courts toward blood grouping tests has changed greatly in the past 20 years. The trend undoubtedly is stated by Houston v. Houston, 99 N.Y.S.(2d) 199, 197 Misc. 469 (1950), wherein the court declared:
* * * that enlightened judicial acceptance of the decisiveness of properly administered blood-grouping tests supersedes the narrower view.
The first State supreme court to pass on the subject of the weight to be accorded such tests was State v. Damm, 62 S.D. 123, 252 N.W. 7 (1933); reh., 64 S.D. 309, 266 N.W. 667, 104 A.L.R. 441 (1936). In that case, which was tried in 1931, the court held that the trial court's refusal to permit blood tests, at the request of a defendant charged with rape resulting in the birth of a child, was not an abuse of discretion. The assigned reason for the ruling was that the reliability of the tests had not been sufficiently established. On rehearing in 1936 the court said:
* * * it is our considered opinion that the reliability of the blood test is definitely, and indeed unanimously, established as a matter of expert scientific opinion entertained by authorities in the field.
Defense counsel had requested the tests, but had offered almost nothing to explain the nature of the tests or to establish their accuracy. The Supreme Court of the State later said that a trial judge in South Dakota in 1931 should not have been expected to have been informed as to these tests and criticized defense counsel for not having created an adequate record on this issue. The court refused to reverse the conviction, because of the inadequacy of the trial record on this point, but the defendant was pardoned by the governor on a recommendation of the State Board of Pardons on the strength of his offer to undergo the blood test, even though there never was such a test.
The next State supreme court to pass on this subject was Arais v. Kalensnikoff, 95 Calif.Dec. 4, 74 Pac.(2d) 1043 (1938), where the court held that under the California code no evidence is conclusive or unanswerable unless made so by statute. Since there was no such provision in the code with regard to blood tests the court would not declare the trial judge in error in refusing such a test. This view was adhered to in the more recent case of Berry v. Chaplin ( supra), where the intermediate court refused, on the strength of blood tests alone, to overturn a jury verdict in favor of the plaintiff, although the tests showed the defendant could not possibly be the father of the plaintiff's child. The court said, however:
Conceding the immutability of the scientific law of blood-grouping, which we have no reason to question, the infallibility of the results of blood tests depends upon the skill employed in making them. [Italics supplied.]
One justice concurred because he felt the court was bound by the previous decision in Arais v. Kalensnikoff ( supra). However, he stated:
In the case of bar a widely accepted scientific method of determining parentage was applied. Its results were definite. To reject the new and certain for the old and uncertain does not tend to promote improvement in the administration of justice.
The decision in Berry v. Chaplin was not appealed to the Supreme Court of California. It has been widely criticized by other courts and in legal literature. Gilpin v. Gilpin, 94 N.Y.S.(2d) 706, 197 Misc.R. 319 (1950); Schatkin, Disputed Paternity Proceeding (2d ed., 1947).
In contrast, there are many cases where courts have recognized the cumulative demonstrations of the reliability of blood tests as negative proof and have either ordered blood tests or ordered new trials where juries had rejected blood test evidence. Com. v. Zammarelli, 17 Pa.D. C. 229 (1931) and State v. Wright, 59 Ohio App. 191, 17 N.E.(2d) 428 (1938). An early decision which recognized the value of the tests is State ex rel Van Camp v. Welling 22 Ohio L.Abs. 448, 6 Ohio Opinions 371, 3 Ohio Supp. 333 (1936). The outstanding line of cases is from the New York Courts, Dellaria v. Dellaria (1944) 183 Misc. 832, 52 N.Y.S.(2d) 607. Schulze v. Schulze, 35 N.Y.S.(2d) 218 (1942). D'Agostino v. D'Agostino, 173 Misc. 312, 17 N.Y.S.(2d) 905 (1940). Shanks v. State ( supra). (This is a rape case but contains a good discussion of blood tests.) In Com. of Welfare ex rel Tyler v. Costonie, 277 App.Div. 90, 97 N.Y.S. (2d) 804 (1950), a paternity proceeding in which the trial court entered an order for complainant in spite of blood tests excluding the paternity of the defendant, the appellate court reversed the order and remanded the case for a new trial.
In Cuneo v. Cuneo, 96 N.Y.S.(2d) 899, 198 Misc.R. 240 (1950) an action for annulment of a marriage, the court heard testimony with regard, not only to the usual AB tests and MN tests, but as to a test relating to the RH positive and negative factors. Only by the third RH type test was the nonpaternity discovered. This third test was also used and recognized in Scalone v. Scalone, 199 Misc. 210, 98 N.Y.S.(2d) 167 (1950) and in Saks v. Saks, 189 Misc. 667, 71 N.Y.S.(2d) 797 (1947). The experts in the Scalone case were the same two doctors as those who appeared in the Cuneo case. Dr. Wiener testified in the Saks case that definite exclusion could be established under the old tests in approximately one-third of all cases involving innocent men, but that with the old tests and the RH-HR test 55 percent of innocent men can be positively excluded. This Board does not have before it evidence as to the efficacy and recognition of the RH test at this time, but it is worthy of note that the third type of test has been developed. In the Cuneo case the court said, "to reject such testimony would be tantamount to rejecting scientific facts," a statement which has been widely copied in other cases since this time.
The latest case accepting this view is Clark v. Rysedorph, (N.Y.Sup.Ct., App.Div.) 118 N.Y.S.(2d) 103 (1952). The court specifically rejected or distinguished Matter of Harding v. Harding, 22 N.Y.S.(2d) 810, State ex rel Slovak v. Holod, 63 Ohio App. 16, 24 N.E.(2d) 962, State v. Damm ( supra) and Arais v. Kalensnikoff ( supra). The court said: "The doctors' testimony as to the result of the tests is uncontradicted and is conclusive as to nonpaternity. To reject such testimony is to ignore scientific facts."
The New Jersey courts, while first holding the other way, have now reversed themselves to follow the ruling of the New York courts. Bednarik v. Bednarik, 18 N.J.Misc.R. 633, 16 A.(2d) 80 (1940) was overruled by implication in Anthony v. Anthony, 9 N.J.S. 411, 74 A(2d) 919 (1950) and later specifically overruled in Cortese v. Cortese, 10 N.J.S. 152, 76 A.(2d) 717 (1950) where it was held that it was reversible error for the trial judge to have refused defendant's motion for an order compelling a blood grouping test. The plaintiff argued that under the New Jersey statute the order for such a test was within the discretion of the trial court. The appellate court responded that the discretion was not properly exercised under the circumstances and that the error was one which injuriously affected substantial rights of a party. The court said:
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 * * * (citing cases and authority) * * *. It is plain we should hold, as we do, that this unanimity of respected authorities justifies our taking judicial notice of the general recognition of the accuracy and value of the tests when properly performed by persons skilled in giving them. The law does not hesitate to adopt scientific aids to the discovery of truth which have achieved such recognition.
The court then compared the growing recognition of the value and accuracy of blood tests with the early cases recognizing the admissibility in evidence of fingerprints "now universally acknowledged to be virtually dispositive of issues of identity."
To cite additional authority would be merely repetitive. Other cases and authorities we have relied on are set forth in the bibliography appended hereto.
We have a different problem from that involved in the usual filiation or statutory rape proceeding, in that cases before this Board are not "adversary" proceedings. In every case the appellant and the alleged parents both declare, for whatever purpose, that he is the blood son of the citizen father. It is the duty of the Immigration authorities to attempt to discern the truth of those claims. Rarely is there any evidence of the probative value found in other kinds of proceedings. Much has been written by the courts of the importance in paternity suits of such persuasive evidence as the blood tests. They are of no less value in citizenship cases where parentage is in doubt.
The cases in which paternity was found to exist in spite of blood grouping tests which showed nonpaternity are mostly jury cases. Where a jury has returned a verdict of guilty (in criminal cases) or has found paternity to exist (in support cases) some appellate courts have hesitated to overturn that verdict on the strength of blood test evidence alone. The issue is further confused in domestic relations cases by the presumption of legitimacy and by the aim of the courts to hold families together. Further, if the court overturns the jury verdict it may create a situation, as some courts have mentioned, of forcing the community to support an illegitimate child. We have no such problems here, and we need not feel bound by cases wherein the decisions were influenced by such factors. We can confidently recognize the conclusive weight of blood-grouping evidence and admit its value in this case and in future cases of this kind. The problem in these cases is not one of legitimacy but of identity.
It is essential that we make is clear that only where definite exclusion of paternity is established shall the test be considered to be evidence. Otherwise persons unaware of the principles of heredity involved may be inclined to infer paternity where there is no positive finding of nonpaternity. The limitations of the tests are recognized by the appellate court in State ex rel Wollock v. Brigham, 33 N.W.(2d) 285 (Sup.Ct., S.Dak., 1948) where the trial court had entered an order requiring defendant "to submit to a blood test to determine whether or not the defendant is the father * * *." The court held that such tests are not good affirmatively to establish paternity, and denied the order.
Counsel cites Matter of W---- G---- F----, A-8021479 (October 9, 1951) and Matter of B---- J---- H---- 1300/125711 (August 15, 1952). In those cases we had before us, not the results of blood grouping tests, but the problem of refusal of applicants to take such tests. Similar problems were presented by Matter of G---- C---- M---- 0300/423164 (October 16, 1952) and Matter of H---- G---- F---- and H---- N---- L----, T-1497120-121 (October 17, 1952). We do not have before us at the present time the problem of a refusal to take blood tests.
Even so, it is worth noting in passing that Beach v. Beach, 114 F.(2d) 479, (C.A., D.C., 1940) holds that while Federal courts formerly could not subject plaintiffs to physical examinations except in States where such examinations were authorized by statute, rule 35(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c now authorizes such tests. This rule provides:
In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination.
In discussing this rule the court said:
As the rules were authorized and tacitly ratified by Congress, and adopted by the Supreme Court, it is clear that a physical examination may now be ordered in a case covered by rule 35(a).
The court also said:
The value of blood grouping tests as proof of nonpaternity is well known. On this point it is enough to cite the report of the American Medical Association's Committee on Medico-legal Blood Grouping Tests, 108 Journal of Medical Association, 2138-2142, June 1937.Beach v. Beach, supra, has been widely cited as authority for Federal courts to order blood grouping tests and also as a case in which the court took judicial notice of the existence and efficacy of the tests. The latest cases following this authority that have come to our attention are Ly Shew ex rel Ly Moon v. Acheson, 110 F.Supp. 50 (N.D.Calif.S.D. 1953) and Fong Sik Leung v. Acheson, unreported (Northern District of California, Southern Division, August 27, 1952. In both cases the court directed the plaintiffs and their alleged fathers to submit to physical examinations including blood grouping tests.
We have discovered no case in which any party has even attempted to introduce medical testimony refuting the conclusiveness of the results of properly conducted blood tests. On the contrary, the courts and expert witnesses comment that there is no competent medical authority that questions the fact that blood tests can disprove paternity in some cases when the child is not the blood son of the alleged father. In Schatkin, Disputed Paternity Proceedings (2d ed. 1947), an authority often quoted, the author says (p. 184):
As far as the accuracy, reliability, dependability * * * even infallibility * * * of the tests are concerned, there is no longer any controversy. The result of the test is universally accepted by distinguished scientific and medical authority.
In chapter VIII, "The Unerring Accuracy of Blood Tests," Schatkin relates that in 655 blood tests made between 1935 and 1945 by order of the Court of Special Sessions in New York City and resulting in 65 exclusions of paternity, every case of an exclusion "was followed by the mother's subsequent confession, for the first time, of sexual relations with another man about the time she became pregnant."
Blood grouping tests in connection with litigation should be taken under approved conditions. Proper safeguards can easily be established. The American Law Institute Code of Evidence lays down a sound practice to be followed in shaping expert evidence. Rules 403 and following. The existing statutes covering admissibility of blood grouping proof unanimously provide for adequate judicial control.
In conclusion, we believe that the results of these tests must be conclusive, not rebuttable, if they were properly made. By their very nature the theory of them must be accepted without reservation, or it must be rejected in its entirety. To hold that the results of the tests are mere expert opinion or evidence to be weighed with other evidence would be to fail to comprehend their true nature and meaning. There is no problem here of jury verdicts or the ancient presumptions to confuse the issue, as there have been in many courts of law. We believe that blood tests are standard, scientifically accepted, objective methods for determining nonpaternity. We will accept their results as unanswerable, if they were conducted by a person competent and experienced in making such experiments.
This leaves for determination only the accuracy of the procedure and the competence of the technician. In the instant case this is not an issue. The tests were conducted by both Public Health authorities and by technicians of the appellant's own choosing. The results of the tests were the same in all cases. The appellant was found not to be the blood son of the alleged father. The appeal must be dismissed.
Order: It is ordered that the appeal be dismissed.
BIBLIOGRAPHY
CASES
Arais v. Kalensnikoff, 10 Calif.(2d) 428, 74 Pac.(2d) 1043, 115 A.L.R. 163 (1938) (refused to hold that tests are conclusive).
Anthony v. Anthony, 9 N.Y.S. 411, 74 A.(2d) 919 (1950).
Beach v. Beach, 114 Fed.(2d) 479, 131 A.L.R. 804 (App.D.C. 1940).
Bednarik v. Bednarik, 18 N.J.Misc.R. 633, 16 A.(2d) 80 (1940) (refused to force a blood test; specifically overruled by Cortese v. Cortese 10 N.J.Sup. 152, 76 A.(2d) 717).
Berry v. Chaplin, 74 Calif.App.(2d) 652, 169 P.(2d) 442 (1946) (refused to hold that tests are conclusive).
Beuschel v. Manowitz, 241 App.Div. 888, 272 N.Y.S. 165; (Motion for leave to appeal den.) 265 N.Y. 509, 193 N.E. 295. (Contra; but made ineffective by subsequent N.Y. Statute.)
Clark v. Rysedorph, Law Week (Dec. 30, 1952) 118 N.Y.S.(2d) 103.
Com. of Welfare v. Costonie, 97 N.Y.S.(2d) 804 (1950) (new trial ordered on basis of blood test).
Com. v. English, 123 Pa.Super.Ct. 161 (1936) 186 A. 298.
Contra, Commonwealth v. Krutsick, 30 A.(2d) 325 (Pa.Sup. 1943).
Commonwealth v. Visocki, 23 Pa.Dist. Co.R. 103 (Court dismissed action on strength of test).
Commonwealth v. Zammerelli, 17 Pa.D. C. 229 (1931) (new trial granted on strength of test).
Cortese v. Cortese, 10 N.J.S. 152, 76 A.(2d) 717 (1950).
Cuneo v. Cuneo, 96 N.Y.S.(2d) 899, 198 Misc.R. 240 (1950).
Dellaria v. Dellaria, 183 Misc. 832, 52 N.Y.S.(2d) 607 (1944).
Euclide v. State, 231 Wis. 616, 286 N.W. 3 (1939).
Fong Sik Leung v. Acheson, unrep. (N.D.Calif. Aug. 27, 1952).
Gilpin v. Gilpin, 94 N.Y.S.(2d) 706, 197 Misc.R. 319 (1950).
Harding v. Harding, 22 N.Y.S.(2d) 810 (1940) (aff. w.o. opinion), 261 App.Div. 924, 25 N.Y.S.(2d) 525 (overruled by Clark v. Rysedorph), 21 Law Week 2351, Dec. 30, 1952 (N.Y.Sup.Ct.).
Houston v. Houston, 99 N.Y.S.(2d) 199, 197 Misc.Rep. 469 (1950).
Jordan v. Davis, 143 Me. 185, 57 A.(2d) 209 (1948).
Jordan v. Mace, 144 Me. 351, 69 A.(2d) 670 (1949) (held results of test conclusive and binding on jury if properly conducted).
Kwartler v. Kwartler, 291 N.Y. 689, 52 N.E.(2d) 588 (1943).
In re Lentz, 247 App.Div. 31, 283 N.Y.S. 749.
Ly Shew ex. rel. Ly Moon v. Acheson, unrep. (N.D.Calif. Aug. 27, 1952).
Peo. v. Bresloff, 173 Misc. 629, 17 N.Y.S.(2d) 576 (1940).
Peo. ex rel. Van Epps v. Doherty, 261 App.Div. 86, 24 N.Y.S.(2d) 821 (1941).
Qualey v. Qualey, 97 N.Y.S.(2d) 424, 198 Misc.R. 55 (1950).
Saks v. Saks, 189 Misc. 667, 71 N.Y.S.(2d) 797 (1947).
Scalone v. Scalone, 98 N.Y.S.(2d) 167, 199 Misc.Rep. 210 (1950).
Schulze v. Schulze, 35 N.Y.S.(2d) 218.
Shanks v. State, 185 Md. 437, 45 A.(2d) 85, 163 A.L.R. 931 (1945).
State v. Clark, 144 Ohio St. 305, 58 N.E.(2d) 773.
State v. Damm, 62 S.D. 123, 251 N.W. 7, 104 A.L.R. 430 (1933) rehearing.
State v. Damm, 64 S.D. 309, 266 N.W. 667, 104 A.L.R. 441 (1936) (refused to find tests conclusive).
State ex rel. Slovak v. Holod, 63 Ohio App. 16, 24 N.E.(2d) 962 (refused to find tests conclusive).
State ex rel. Van Camp v. Welling, 22 Ohio L.Abs. 448, 6 Ohio Ops. 371, 3 Ohio Supp. 333 (1936).
State v. Van Patten, 236 Wis. 186, 294 N.W. 560 (1940).
State v. Wright, 59 Ohio App. 191, 17 N.E.(2d) 428 (1938) (new trial granted on strength of test), 135 Ohio St. 187, 20 N.E.(2d) 229 (rev. on other grounds).
In re Swahn's Will, 158 Misc. 17, 285 N.Y.S. 234.
Williams v. State, 143 Fla. 826, 197 So. 562 (1940).
163 A.L.R. 939 (1949) Annotation, Supplemented in 1951 A.L.R.Supp. 604.
Report, Committee on Medicolegal Blood-grouping Tests, 108 Am.Med.Assn. Journal, 2138-2142 (June 1937). Committee: Dr. Ludwig Helstoen — Dr. Karl Landsteiner — Dr. Alexander Weiner.
125 Journ. A.M.A. 7, p. 495, June 17, 1944 (editorial).
Britt, S.H., — Blood Grouping Tests and The Law: The Problem of "Cultural Lag," 21 Minn.L.Rev. 671 (1937). — Blood Grouping Tests and More "Cultural Lag." 22 Minn.L.Rev. 836 (1938).
Flacks, W.L. Evidential Value of Blood-Tests to Prove Non-paternity, 21 A.B.A.Jour. 680 (1935).
Galton, H.B. Blood-Grouping Tests and Their Relationship to the Law, 17 Oreg.L.Rev. 177 (1938). (Perhaps the most comprehensive discussion in any American legal periodical.)
53 Harv.L.Rev. 285 (1939) 63 Harvard Law Review 1271 (May 1950).
Hooker, S.B. and Boyd, W.C. — Blood Grouping as a Test of Non-paternity, 25 Journ. of Crim.L. 187 (1934).
Ladd and Gibson, The Medico-Legal Aspects of the Blood Test to Determine Intoxication, 24 Iowa L.Rev. 191, 213, 240.
Landsteiner, K. and Levine, P. — Further Observations on Individual Differences in Human Blood, 24 Proc.Exp.Biol. Med. 600 941 (1927) — On Individual Differences in Blood, 47 Journ.Exp. Medicine, 757 (1928).
Landsteiner, Forensic Application of Serologic Individuality Tests (1934) 103 A.M.A.J. 1041.
Lee, Blewett, Blood Tests for Paternity 12 A.B.A.Jour. 441 (1926).
Levine, The Application of Blood Groups in Forensic Medicine (1932) 3 A.J. Police Soi. 157.
Maguire, John M. Survey of Blood Group Decisions and Legislation in the American Law of Evidence, 16 So.Calif. Law Review 161. (By consulting Wigmore's list and articles cited in Maguire's study one will have most the important American legal material on this subject down to about the end of 1942.)
Muehlberger, C.W. and Inban, F.E. The Scientific and Legal Application of Blood Grouping Tests, 27 Journ. of Crim.L. 578 (1936).
Articles, 124 New York Law Journal, 12, 20 (July 5 and 6, 1950).
Schatkin, S.B. "Disputed Paternity Proceedings" ((2d) Ed. 1947). See ch. VIII, "The Unerring Accuracy of Blood Tests."
Schatkin, S.B. Paternity Blood Grouping Tests: Recent Setbacks, 32 Journ.Crim.L. 458 (1941).
Schoch, Magdalene, Determination of Paternity by Blood Grouping Tests: The European Experience 16 So.Calif. Law Rev. 177.
Wiener, A.S. Blood Grouping Tests in the New York Courts, 70 U.S.L.Rev. 683 (1936). The Judicial Weight of Blood Grouping Test Results, 31 Journ.Crim.L. 523 (1940).
Blood Groups and Blood Transfusion (3d ed., 1943).
2 Amer. J. Human Genetics 177, 1950.
3 Bull. World Health Org. 265, 1950.
Wiener, Rothberg and Fox, Determination of Nonpaternity by Blood Grouping (1932) 23 J. Immunology 63, 70.
1 Wigmore, Evidence (3d ed. 1940) #165 (a) and (b) (contains a substantial list of articles running into 1939).
43 Yale Law Journal 651.
STATUTES
(As compiled by John M. Maguire, Professor of Law, Harvard University, in 16 Southern California Law Review 161, 172 (1943)).
Maine: Laws 1939, c. 259, adding § 12 to Rev.Stat. (1930), c. 111.
Maryland: Laws 1941, c. 307 (pp. 503-504), adding § 17 to Ann. Code (Ed. 1939), art. 12.
New Jersey: Laws 1939, c. 211, p. 619, adding §§ 3 4 to Rev.Stat. (1937) tit. 2, subtit. 11, c. 99.
New York: Civ.Prac. Act, § 306-a, as amended by Laws 1942, c. 893; Code of Crim.Proc., § 684-a; Dom.Rel. Law, § 126-a; N.Y. City Crim.Cts. Act, § 67-1-a; Laws 1942, c. 761, § 1, adding § 34 to Laws 1933, c. 482, which established the domestic relations court of the City of New York.
Ohio: Page Gen. Code Ann. (Fall 1942 Supp.) §§ 12122-1, 12122-2. These provisions, taken together, are more comprehensive than most of the legislation.
South Dakota: Code 1939, § 36.0602. This is derived from Fed. Rules Civ.Proc., Rule 35(a), with addition of brief specific clauses referring to blood tests. In connection with the following sections, it seems a good working provision in brief compass.
Wisconsin: Stat. 1941, §§ 166.105 and 325.23. These provisions show careful draftsmanship. They combine features found in the Ohio legislation or the New York Civil Practice Act.