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Mattox v. Alaska Child Support Enforcement Division (6/17/94) sp-4094
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
BRUCE L. MATTOX, )
) Supreme Court No. S-5226
) Superior Court No.
v. ) 3AN-87-4110 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, ex )
rel., MEGAN NEESON and )
CHRISTOPHER NEESON, ) [No. 4094 - June 17, 1994]
BRUCE L. MATTOX, ) Supreme Court No. S-5227
Appellant, ) Superior Court No.
) 3AN-87-9890 CI
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, ex )
rel., ROCHELLE RATLIFF, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Elaine M. Andrews,
Appearances: Ernest Z. Rehbock, Rehbock
& Rehbock, Anchorage, for Appellant. Mary A.
Gilson, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
In these paternity actions the trial court granted
summary judgment in favor of the State, establishing that Bruce
L. Mattox is the biological father of three children. Although
evidence conflicted significantly as to whether Bruce or his
brother Richard was the father of the children, the court granted
summary judgment based on paternity evaluation reports which
tested the DNA of the mother, the children, and Bruce and
Richard. The reports of these tests concluded that, as to Bruce,
the probability of paternity was 99.99% as compared to an
untested random male of the North American caucasian population,
while Richard was excluded as the biological father of the
We reverse. The proffered DNA reports were not accom
panied by authenticating affidavits. No sworn testimony was
offered that the tests reflected by the reports were
scientifically accepted, or that procedures necessary to make the
tests valid were followed. Authentication is a requirement
generally applicable to documentary evidence, Alaska R. Evid.
901, with exceptions not here relevant. Alaska R. Evid. 902.
General scientific acceptance is a statutory requirement for the
admissibility of technical tests in paternity cases, AS
25.20.050(d), (e),1 as well as a common law requirement for
scientific evidence where no statute governs. Contreras v.
State, 718 P.2d 129, 135-36 (Alaska 1986); Pulakis v. State, 476
P.2d 474 (Alaska 1970) (adopting test of Frye v. United States,
293 F. 1013 (D.C. Cir. 1923)).2 In DNA tests, as in other
scientific tests, assuming general scientific acceptance, set
procedures must be followed to ensure the validity of the tests.
Compliance with these procedures must be shown. See, e.g.,
United States v. Two Bulls, 918 F.2d 56 (8th Cir. 1990)
(reversible error for the trial court to determine the
admissibility of DNA evidence without determining whether the
testing procedures were properly performed); State v. Schwartz,
447 N.W.2d 422 (Minn. 1989) (DNA evidence is generally admissible
under the Frye test, but results here excluded because lab did
not comply with established protocol); People v. Castro, 545
N.Y.S.2d 985 (Sup. 1989) (although DNA evidence met Frye,
evidence excluded because the lab failed to follow accepted
scientific techniques); Barbara A. v. Gerard J., 553 N.Y.S.2d 638
(Fam. Ct. 1990) (DNA test results excluded because the particular
test was tainted). See also Keel v. State, 609 P.2d 555 (Alaska
1980) (breath test improperly admitted because state did not
establish that calibration was performed by an "instructor" as
required by protocol adopted by regulation).
The party who moves for summary judgment must establish
that there are no genuine issues of material fact. Weaver Bros.,
Inc. v. Chappel, 684 P.2d 123, 126 (Alaska 1984); State, Dep't of
Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska 1978); Wickwire
v. McFadden, 576 P.2d 986, 987 (Alaska 1978). As the State did
not meet this burden in these cases, the judgments are REVERSED
and these cases are REMANDED for further proceedings.3
1 AS 25.20.050 states in pertinent part:
(d) The results of a blood test,
tissue-type test, protein comparison, or
other scientifically accepted procedure shall
be admitted and weighed in conjunction with
other evidence in determining the statistical
probability that the putative parent is a
legal parent of the child in question.
However, a scientifically accepted procedure
that establishes a probability of parentage
at 95 percent or higher creates a presumption
of parentage that may be rebutted only by
clear and convincing evidence.
(e) On request of a party in an
action in which paternity is contested and to
which the state is a party, the court shall
order the mother, the child, and the putative
father to submit to a blood test, tissue-type
test, protein comparison, or other
scientifically accepted procedure designed to
determine the statistical probability that
the putative parent is a legal parent of the
child in question.
2 But see Daubert v. Merrell Dow Pharm., Inc., ___ U.S.
___, 113 S. Ct. 2786, 2793 (1993) (holding that the Federal Rules
of Evidence supersede the Frye test regarding admissibility of
3 As the other points raised by the appellant depend in
whole or in part on the admissibility and validity of the test
reports, we consider them moot for the purposes of this appeal.