Demanding competent evidence

A UCLA law prof. reports:

Dier v. Peters (Iowa June 1, 2012) offers a good discussion of the debate about paternity fraud lawsuits, including citations to cases that reject such a cause of action and to cases that accept it.

This particular case concludes that, if a woman fraudulently tells a man that he was the father of her child, and the man voluntarily pays child support (not pursuant to a court order), he is entitled to a return of the payments. This seems right to me, on basic principles of the law of fraud; what to do about past court-ordered payments is a more complicated matter, having to do with the proper means of reversing existing judgments, though I think some such remedy should be available there as well. In any case, it’s an interesting opinion, with an interesting concurrence.

The opinion complains that “proving fraud is a difficult task.” That is only because our system makes it difficult. There is not even any discussion of criminally prosecuting the fraud.

Each new mom should fill out a birth certificate form where she names the dad, and can check a box for whether she is certain. If she cannot name the dad, then the baby is put up for adoption. If she fails to check the box, then she must arrange for a DNA test. If she checks the box and a later DNA test proves that she lied, then she goes to prison for paternity fraud.

This would guarantee that all kids are born with a properly identified mom and dad, and would eliminate paternity fraud. 99+% of moms are certain who the dad is. There is still a possibility that the state might let an LGBT couple adopt the baby, but I don't want to get into that or my comment section will be filled with nasty ad hominem attacks again.

On the subject of DNA evidence in court, the US Supreme Court just handed down its decision in Williams v. Illinois (pdf). It is a sharply divided opinion about whether a rape suspect has a Sixth Amendment right to confront the DNA witness against him. The prosecutor used an expert witness to sneak the DNA report into evidence before the jury, but the witness could not really vouch for the report. So the report was unsworn, and the jury may not have appreciated that. There was no majority among the justices on what rules to apply. As a result, the issue is still somewhat unsettled.

The issue ought to be simple:

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government.

So no one should ever be convicted by reports or affidavits. The witness with first-hand knowledge has to testify, and answer any questions about what he knows.

The family court is notorious for violating rules of evidence with experts. My local family court might get a report from a gay shrink with no expertise in normal family relationships, and the report will include all sorts of one-sided factual allegations that no one has attempted to verify. Or a Jewish shrink might apply Jewish law or anti-Christian bigotry to the case. The court does not actually require competence in the actual report or testimony.

This should not be complicated. Our constitutional rights are hanging on my a thread in criminal cases, and are already gone in the family court.

Baseball pitcher Roger Clemens was just acquitted of perjury and all other counts. As usual, I believe in innocence until proven guilty. The evidence against him was almost entirely the testimony of one guy with dubious motives. If steroids were really so important to his spectacular career, then I would expect a lot more evidence. It should not be so easy to ruin a great man.

The problem of steroid accusations in sports is another one that is easily solved by technology. We should not accuse an athlete of steroids unless he tests positive, and is given an opportunity to be retested by another lab. The tests are objective. I also disagree with the accusations against Lance Armstrong, because he always tested negative and has no opportunity to refute the allegations with retesting.