II. Uniform Act on Paternity.

A. Standard of Proof--Establishing Paternity.

1. Compare old U.C.A. § 75-2-109(b) "clear and convincing proof" with new U.C.A. § 75-2-114(1), which provides that the parent and child relationship may be determined under the Uniform Act on Paternity.

2. The standard of proof for paternity under the Uniform Act on Paternity is "by a preponderance of the evidence." U.C.A. § 78-45a-6.5.

3. See also U.C.A. § 78-45a-5(3), which says that for temporary child support orders, paternity may be established if "there is clear and convincing evidence of paternity in the form of genetic test results under Section 78-45a-7, or 78-45-10, or other evidence."

4. See also U.C.A. § 78-45a-10(3)(a), which provides that "a man is presumed to be the natural father of a child if genetic testing results in a paternity index of at least 150." If a presumption of paternity is established under § 78-45a-10(3)(a), then § 78-45a-10(3)(b) provides that the presumption "may only be rebutted by a second genetic test ... that results in an exclusion." U.C.A. § 78-45-10(4) provides that "if a presumption of paternity established under Subsection (1) [error, should be 78-45a-10(3)(a)??] is not rebutted by a second genetic test under Subsection (2) [error, should be 78-45a-10(3)(b)??], the court shall issue an order establishing paternity."

B. Right to Jury.

1.Hyatt v. Hill, 714 P.2d 29 (Utah 1986) held that since there is no inherent constitutional right to a trial by jury in paternity proceedings in this state and the Legislature has not provided for such a right by statute, the putative father had no right to a trial by jury.

2. Current Uniform Act on Paternity has no provision relating to issue one way or the other. Note, old U.C.A. § 78-45a-6.5(1) (enacted in 1988) provided that either party to a paternity action could demand a jury trial. That section was repealed effective July 1, 1997.

3. U.C.A. § 75-1-306(1) provides: "If duly demanded, a party is entitled to trial by jury in a formal testacy proceeding and any proceeding in which any controverted question of fact arises as to which any party has a statutory or constitutional right to trial by jury."

4. U.C.A. § 75-1-306(2) provides: "If there is no right to trial by jury under Subsection (1) of this section or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only."

C. Time of Trial. U.C.A. § 78-45a-6 provides that trial cannot occur until after child's birth without father's consent. See also U.C.A. § 75-2-108 (survival by 120 hours required).

D. Methods of Proof: Other Evidence.

1. Birth Certificates. U.C.A. § 26-2-5(7) provides that "the name of the father may only be included on the birth certificate of a child of unmarried parents if: (a) the mother and father have signed a voluntary declaration of paternity; or (b) a court or administrative agency has issued an adjudication of paternity." In this regard, U.C.A. § 26-2-5(4) provides detailed procedures for birthing facilities' providing the birth mother and biological father, if present, with a voluntary declaration form; oral and written notice to the birth mother and biological father of the alternatives to, the legal consequences of, and the rights and responsibilities that arise from signing the declaration; and the opportunity to sign the declaration.

2. Presumption as to Children Born During Marriage.

(i) The birth certificate will list the name of the married parents.

(ii) U.C.A. § 26-2-26(2) provides that certified copies of birth certificates are "prima facie evidence in all courts of the state with like effect as the vital record."

(iii) The longstanding common law rule is that child born to married woman is presumed to be offspring of her husband and legitimate. See Holder v. Holder, 340 P.2d 761 (Utah 1959).

a. This presumption can only be overcome by proof beyond a reasonable doubt. Lopes v. Lopes, 518 P.2d 687 (Utah 1974).

b. Lord Mansfield's Rule: Spouses themselves may not give testimony which would tend to illegitimatize the child. See Goodright v. Moss, 2 Cowp. 591, 98 Eng. Reprint 1257 (1777), wherein Lord Mansfield said: "...it is a rule founded in decency, morality, and policy that they (husband and wife) should not be permitted to say after marriage that the offspring is spurious; or especially the mother, who is the offending party."

c. Lord Mansfield's Rule does not bar introduction of results of blood or tissue typing tests or testimony from witnesses other than the putative parents on the issue of paternity. Teece v. Teece, 715 P.2d 106 (Utah 1986).

d. Evidence comprised of blood tests indicating that husband was not biological father of child, combined with fact that child was partly of African ancestry while husband and wife were both of Anglo-Saxon ancestry, was sufficient to rebut presumption of legitimacy beyond a reasonable doubt. See State in Interest of J.W.F. v. Schoolcraft, 799 P.2d 710 (Utah 1990).

3. Voluntary Declarations of Paternity. U.C.A. § 78-45e-1 et seq.

(i) Subsection 2(1)(a) provides that "a voluntary declaration of paternity filed in compliance with this chapter establishes a father-child relationship identical to the relationship established when a child is born to persons married to each other."

(ii) Subsection 2(3) provides that a voluntary declaration of paternity shall become an amendment to the original birth certificate.

(iii) Subsection 3 requires the voluntary declaration to be signed by the birth mother and biological father, and by the legal guardian or parent of any biological father who is under 18 years of age.

(iv) Subsection 4 provides a procedure for rescinding a voluntary declaration of paternity.

4. Verbal or Written Acknowledgments by Decedent Prior to Death.

(i) Such statements by the decedent (as declarant), who is not present at trial (because he is dead) is hearsay. URE Rule 801.

(ii) Possible Exceptions to Hearsay Rule:

a. URE Rule 804(b)(2). Statement Under Belief of Impending Death. Exception for "a statement made by a declarant while believing that the declarant's death was imminent, if the judge finds it was made in good faith."

b. URE Rule 804(b)(3). Statement Against Interest. Exception for "a statement which as at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true...." Query, does a statement like "the child is mine," that would subject the decedent or his estate to past child support obligations, to intestacy claims, qualify for the exception.

c. URE Rule 804(b)(4). Statement of Personal or Family History. Exception for "(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

d. URE Rule 803 Normal Exceptions. (1) Present sense impression, (2) excited utterance, (3) statement of existing mental, emotional, or physical condition, (5) recorded recollection, (9) Records of vital statistics (i.e., birth certificates, voluntary declarations of paternity), (11) Records of religious organization (statements of births, marriages, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization), (12) Marriage, baptismal, and similar certificates, (13) Family records (statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like), etc.

E. Method of Proof: Genetic Test Results Under Uniform Act on Paternity.

1.Two Methods for Obtaining Tests.

(i) U.C.A. § 78-45a-10: Provides procedures for admissibility of all genetic tests.

(ii) U.C.A. § 78-45a-7: Provides procedures for obtaining "compulsory testing" where one or both parents will not voluntarily submit to testing.

2. Foundational Requirements for Admissibility.

(i) U.C.A. § 78-45a-10(1). Court may rely on genetic test results "without the need for foundation testimony or other proof of authenticity or accuracy if:

(a) of a type generally acknowledged as reliable by accreditation bodies designated by the federal Secretary of Health and Human Services;

(b) performed by a laboratory approved by such an accreditation body; and

(c) not objected to with particularity and in writing within 15 days after the written test results being sent to the parties."

(ii) U.C.A. § 78-45a-10(2) provides, where foundational testimony is required, that such foundational testimony may, upon a motion of a party, be established by testimony from genetic testing experts in affidavit form, "(b) unless a party objects with particularity and in writing within 15 days after the written test results are sent to the last-known address of that party on file...."

(iii) If the written objection is filed within 15 days, then:

a. The court cannot rely upon the genetic test results without appropriate foundational testimony.

b. The foundational testimony cannot be in affidavit form. [Query, does this require a trial of the matter for due process reasons, with full judicial consideration of the foundational requirements for the admissibility of the testing, or does the absolute preclusion of resolution of paternity by summary judgment violate the separation of powers provisions of the constitution by the legislature's precluding the court from resolving paternity on summary judgment where objections are timely filed?].

(iv) Admissibility of Genetic Test Results--Scientific Evidence.

a. URE Rule 702: Testimony by Experts: "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."

b. State v. Crosby, 927 P.2d 638 (Utah 1996), held that the appropriate standard for admissibility of scientific evidence was set forth in the Utah's Supreme Court's 1989 decision in State v. Rimmasch, 775 P.2d 388 (Utah 1989), which, the Crosby Court held was a standard "similar" to that adopted by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). That standard embodies three threshold steps for determining the admissibility of scientific evidence:

1. Step One: Requires the court to determine whether the scientific principles and techniques underlying the expert's testimony are inherently reliable. See Rimmasch, 775 P.2d at 400. This may be done by judicial notice if the scientific principles and techniques at issue have been generally recognized and accepted by the legal and scientific communities. Id .; see also Kofford v. Flora, 744 P.2d 1343, 1348 (Utah 1987) (holding that scientific principles and techniques underlying human leukocyte antigen (HLA) testing were accepted by legal and scientific communities for proving paternity and therefore proper grounds for judicial notice existed). If judicial notice is not appropriate (because, for example, the scientific principles and techniques are too new to have gained general recognition and acceptance by legal and scientific communities), then the party seeking to have the evidence admitted has to lay sufficient foundation to demonstrate the inherent reliability of the underlying principles and techniques.

2. Step Two: Requires the court to determine that the scientific principles or techniques at issue have been properly applied to the facts of the particular case by sufficiently qualified experts. Rimmasch, 775 P.2d at 398 n.7.

3. Step Three: Requires a determination as to whether the proffered scientific evidence will be more probative than prejudicial as required by URE Rule 403. Id. At 398 n.8.

See also, Frye v. United States, 293 F. 1013 (D.C.Cir. 1923); Phillips v. Jackson, 615 P.2d 1228 (Utah 1980).