Little v. Streater

PETITIONER:Little
RESPONDENT:Streater
LOCATION:1980 Democratic National Convention, Madison Square Garden

DOCKET NO.: 79-6779
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State appellate court

CITATION: 452 US 1 (1981)
ARGUED: Jan 13, 1981
DECIDED: Jun 01, 1981

ADVOCATES:
Jon C. Blue – on behalf of the Appellant
Stephen J. McGovern – on behalf of the Appellee

Facts of the case

Question

Audio Transcription for Oral Argument – January 13, 1981 in Little v. Streater

Warren E. Burger:

We’ll hear arguments next in Little v. Streater.

Mr. Blue, you may proceed whenever you are ready.

Jon C. Blue:

Thank you.

Mr. Chief Justice, and may it please the Court:

From time to time in the history of our country technological innovations have played a decisive role in the formation of constitutional doctrine.

This is a paternity case in which an indigent defendant was denied access to a blood grouping test that conclusively exonerates more than 90 percent of all falsely accused putative fathers.

A Connecticut statute categorically restricts access to this test to those defendants able to purchase it in advance of trial.

Potter Stewart:

In your statement of facts… and I was troubled in reading the brief too… I thought in a negative way, if it exonerated putative fathers, it exonerated them 100 percent.

Jon C. Blue:

It exonerates 90 percent of innocent putative fathers 100 percent of the time.

In other words, if you have 100 accused putative fathers, none of whom are the actual fathers.

The blood test, standard blood test available everywhere, will conclusively show that 91 or 93, depending on the race, of those men are not the father.

With the other seven to nine percent, the test will simply be inconclusive.

Potter Stewart:

Well, I had thought that… maybe the technology has gone beyond my previous knowledge… but I had thought that if you showed that the putative, the accused father had blood of a type different from the child, that he could not be the father.

Jon C. Blue:

That is exactly correct.

Potter Stewart:

It’s just impossible for him to be the father.

Jon C. Blue:

And when the blood test–

Potter Stewart:

But if he had the same, it didn’t prove that he was or wasn’t.

Jon C. Blue:

–That is exactly correct.

The capability of medical science is simply that it will prove that exclusion to approximately 91 or 93 percent.

Potter Stewart:

Well, I thought it was 100 percent.

Jon C. Blue:

No, it is not.

It is approximately 91 to 93 percent, but with those innocent defendants, there is no doubt, it is 100.

The proof with those defendants rises to 100 percent.

But the others are simply inconclusive.

Potter Stewart:

In any event, it’s conceded, without getting into the details–

Jon C. Blue:

Certainly, in fact–

Potter Stewart:

–That it’s very probative and useful evidence in this kind of case.

Jon C. Blue:

–Oh, absolutely, and the State does not–

Potter Stewart:

Not question this; right.

Jon C. Blue:

–question this in its own brief.

Warren E. Burger:

Well, I suppose, not in the same sense but with the same result, an alibi witness showing that the gentleman was in Angola at the time as a war correspondent would produce a favorable result for him, wouldn’t it?

Jon C. Blue:

Not in the same way that a blood test evidence produces the favorable result.

Because when the blood test evidence–

Warren E. Burger:

I’m talking about the consequence in terms of the judgment or verdict, as the case may be.

Jon C. Blue:

–No, because blood test evidence of exclusion is tantamount to automatic acquittal of the defendant in practice.

It does not turn on credibility.

An alibi witness, to use the example you chose, is only exculpatory if that alibi evidence is believed.

The two are not comparable in fact.

Warren E. Burger:

Is the trier or the triers if it’s a jury, compelled to believe any expert testimony?

This is in the category of expert testimony, I take it.

Are they compelled to believe it?

Jon C. Blue:

Mr. Chief Justice, there is no Connecticut state law on the subject, although the statute we are appealing from speaks in terms of definite exclusion.

I can represent to you that there is simply no one case in the history of Connecticut, so far as I know, in which a defendant has been found guilty in the face of exculpatory blood test evidence, and does in fact have this practical–

Thurgood Marshall:

And you can’t cross-examine a blood test.

Jon C. Blue:

–Well, that’s correct; that’s correct.

And it’s quite a different proposition than an alibi witness which raises problems of credibility in virtually any case.

Warren E. Burger:

You can cross-examine the people who make the test, can’t you, and isn’t there often cross-examination of experts who make tests?

Jon C. Blue:

Well, that is correct, because this is quite a different type of evidence than ordinary expert witness testimony that we’re inclined to think of in, for example criminal cases; in, for example, a criminal case where you have psychiatric testimony indicating that the defendant is or is not sane.

You will have a situation in which different experts might hold honestly, might honestly hold different beliefs and have different observations of the same phenomena.

This is not the case with blood test evidence where there is a showing of exclusion; there will be no doubt as to the fact that the man is in fact excluded, and you simply do not have the type of disagreement between expert witnesses that you would, for example, in a criminal case involving psychiatric testimony.

It is really quite a distinct type of evidence even in the universe of expert testimony.

William H. Rehnquist:

In a marijuana case or a drug possession case, for example, a typical type of evidence put on is to show that the packet possessed by the defendant was the same one submitted to the laboratory and is now in court.

And certainly the defense lawyer is permitted to cross-examine as to the passage of control from one person to another in that chain.

I would think, in laboratory examinations, that defense counsel is certainly permitted in most states, at any rate, to cross-examine as to, was this blood testimony, or was this blood sample the one actually taken?

Was there a mix-up in the laboratory?

And that type of thing.

Jon C. Blue:

That’s correct, Justice Rehnquist.

It would depend on the particular state procedure.

But–

Thurgood Marshall:

But that’s not attacking the evidence.

Thurgood Marshall:

The evidence is–

Jon C. Blue:

–That’s not attacking the evidence itself.

It’s a very tangible type of thing.

Thurgood Marshall:

–And it’s never been disputed; it’s never been disputed.

Jon C. Blue:

That’s correct.

It would be a very rare case where you would have actual–

Thurgood Marshall:

I didn’t say how you could get a witness to say that a blood test isn’t accurate.

Jon C. Blue:

–That’s right.

It would virtually never happen.

I mean… theoretically, some state laws might permit cross-examination as to whether blood samples have been switched, but in practice, the practical effect of that type of allowance is de minimis because in the overwhelming number of cases I think that even my opponent would concede that blood test evidence does have an indisputable quality to it when it yields an indication of exoneration.

And it does have a sweeping capability to exonerate that is simply not shared by other evidence, be is testimonial evidence or for that matter other scientific evidence in the ordinary cases that one might think of.

Now, it’s our position that these distinctions which I have drawn make the constitutional difference, and the difference goes to both the truth-seeking function of the Court, or of the factfinder, whichever that may be, and also because the inevitable result of the distinction or the discrimination that Connecticut has chosen to draw is a dual system of justice.

I recall, in the case of United States v. Raddatz last term, Justice Blackmun in his concurring opinion pointed out that the focus of the Due Process Clause is a practical concern for accurate results, and surely few cases can be imagined in which that practical concern has a greater impact than in this case.

This Court has particularly been concerned with accuracy in the past years in Fourth Amendment cases involving the exclusionary rule of the Fourth Amendment.

William H. Rehnquist:

And is the cost of a blood test sampling taxable as costs in a paternity proceeding in which the defendant is acquitted?

Jon C. Blue:

In some states it’s discretionary though I believe I mentioned that in a footnote in my brief.

In Connecticut there is no reason as to why it might not be, and I would simply point out in that regard that we are not asking for a gratuitous subsidy.

But the State could, to minimize its own expenditure of costs, simply require that when the blood test fails, is taken and fails to exonerate the defendant, that the cost will be taxed as cost.

I believe that that is done specifically by statute in Kansas and Wisconsin, at least.

William H. Rehnquist:

And what is the practice in Connecticut?

Jon C. Blue:

I’m not prepared to say.

I simply don’t know.

I wanted to point out, on the fact of the impact of the accuracy of the test under the Due Process Clause, not only do we have Justice Blackmun’s statement about–

William J. Brennan, Jr.:

Before you get to that, may I just ask this?

Have you cited any case that suggests that if properly done, and the result is negative, that’s the end of the case, civil or criminal?

Jon C. Blue:

–The Court… I have cited a source for that proposition.

The Court might refer to the Schatkin treatise which I cite on page 11 of my brief, which has pages and pages and pages of footnotes supporting the proposition cited in my brief that in the overwhelming weight of contemporary authority, is to treat blood grouping tests as decisive and conclusive–

William J. Brennan, Jr.:

When they’re negative.

Jon C. Blue:

–when they are negative.

Because there is no doubt–

William J. Brennan, Jr.:

Well, not even… and you cite… it’s amazing; it’s 31 years ago… an opinion of mine of 31 years ago in New Jersey.

Did that hold that–

Jon C. Blue:

–I think you’re thinking of Ross v. Marks–

William J. Brennan, Jr.:

–For tetanus.

I don’t even recall that.

Jon C. Blue:

–I would point out that there is an historical distinction that can be made here.

William J. Brennan, Jr.:

Well, if this opinion, which I wrote when I was on the Appellate Division in New Jersey–

Jon C. Blue:

In the Cortese case?

William J. Brennan, Jr.:

–Yes; in 1950.

Didn’t that hold… or did it?

I don’t recall, it’s so long ago, that if negative that was decisive?

Jon C. Blue:

Yes.

William J. Brennan, Jr.:

It did hold that?

Jon C. Blue:

Yes.

William J. Brennan, Jr.:

And that the case ended there?

Jon C. Blue:

That’s correct.

William J. Brennan, Jr.:

Either civil or criminal?

Jon C. Blue:

That’s correct.

In the very early years, in the late ’30s, early ’40s, when blood tests were new and people didn’t really appreciate them, perhaps the tests were of a somewhat cruder quality, or there was some authority to the contrary; there was virtually no authority to the contrary in the last 20 or 30 years.

The tests are conclusive.

I would point out that–

Thurgood Marshall:

Mr. Blue, before you leave that–

Jon C. Blue:

–Certainly?

Thurgood Marshall:

–Can you draw the line as to what the State wouldn’t be required to pay for?

Jon C. Blue:

I think that there are two–

Thurgood Marshall:

I mean, could you say that if there is an expert in the field of something who is in South Africa, that the State would be obliged to bring him there?

Jon C. Blue:

–No.

Thurgood Marshall:

And the difference is?

Jon C. Blue:

The difference is two-fold.

In the first place, an ordinary expert witness testimony will turn, as other testimony on matters of credibility, can be disputed.

Jon C. Blue:

Moreover, with exotic testimony, it will require a great deal of money to obtain.

You are out of the situation we have here where the test is readily available, and not only will you–

Thurgood Marshall:

Well, suppose the expert could be obtained for $289.

Would you have to get him?

You’re not going to put it on money, are you?

Jon C. Blue:

–Well, I would draw a distinction between the type of evidence which is ordinarily obtainable by the typical nonindigent defendant and the type of evidence which would only be available to more wealthy people which would create a somewhat different equal protection argument.

With the type of expert… of course you haven’t elaborated what type of expert in South Africa you’re referring to, if the expert was an expert comparable to blood test evidence in the sense that he was overwhelmingly likely to conclusively show, conclusively show that the defendant was innocent if he was in fact innocent, then that would present a case, obviously, very similar to the case we have before us, but expert–

Potter Stewart:

Expert testimony is by its nature and by definition opinion testimony.

Jon C. Blue:

–That is correct for the typical expert testimony.

Potter Stewart:

And we’re not dealing here with opinion testimony, are we?

Jon C. Blue:

But this is not expert opinion testimony.

Potter Stewart:

No.

We’re dealing here with factual–

Jon C. Blue:

That’s correct.

This is a factual–

Potter Stewart:

–Only facts.

Jon C. Blue:

–That’s absolutely correct, and that’s the distinction that I’m trying to draw between the expert that one might… I’m sorry, Justice Stevens?

John Paul Stevens:

Isn’t there another answer?

If the witness is within the jurisdiction and subject to process, if he’s a $289 expert, the defendant has a right to subpoena him, doesn’t he?

Jon C. Blue:

That’s correct.

John Paul Stevens:

So he has an absolute right, even though it costs a little money.

William J. Brennan, Jr.:

Well, who pays his fee?

In these cases, surely, how the test was done by the laboratory that did it and by whom it was done, which has to be an expert in this field, that’s always open to inquiry.

Jon C. Blue:

That’s correct.

William J. Brennan, Jr.:

Who pays the expense, even if he may be subpoenaed, of the expert witness who testifies in that respect?

Who pays that?

Jon C. Blue:

The question rarely arises because when there is a medical showing of exclusion, typically the defendant will typically withdraw the case, or it would often be a motion for summary judgment that will be granted–

William J. Brennan, Jr.:

Well, I know, but if you had a–

Jon C. Blue:

–If the State insists that it cross-examines the expert witness in a case like this where there is a showing of exclusion, I would argue to the right, I’m arguing, the right I’m arguing for would be meaningless if the resources were not provided to bring this expert witness to court, if it was the State was choosing to dispute it in the first place.

I would just point out–

William J. Brennan, Jr.:

–You say the State would have to pay the expense?

Jon C. Blue:

–If the State chose to dispute that type of evidence.

William J. Brennan, Jr.:

You would want to offer the result of a blood test?

Jon C. Blue:

That’s correct.

William J. Brennan, Jr.:

Or you would want to have one made?

Jon C. Blue:

That’s correct.

William J. Brennan, Jr.:

And the State would say, well, we’re not so sure that laboratory does these things in the way they ought to be done, and if you’re going to do that, you’d better be prepared to put on expert testimony to support the validity of the test and the method by which it was taken.

And then the expert at the laboratory says, all right, for $250 I’ll appear in the courtroom.

Otherwise I won’t.

You can’t compel him if you don’t pay him, can you?

Jon C. Blue:

No, I would think not.

I would certainly have no problem in that instance, which I emphasize is atypical in practice, in fact, very atypical.

But if it’s the State that’s bringing it, and I’m only concerning myself with actions brought by the State in the first place, that then the State should have to come up with the money.

Harry A. Blackmun:

Yes, but doesn’t your argument really carry over to the other situation?

Jon C. Blue:

What do you mean by the other situation, Justice Blackmun?

Harry A. Blackmun:

Well, take a purely private paternity action, and if the blood test is so crucial and so conclusive, on your theory if the putative father is indigent, shouldn’t the State pay for that also?

Jon C. Blue:

In due process terms I think it makes a great deal of difference whether the plaintiff, the actual plaintiff is the State or a purely private person.

Because I think that the Fourteenth Amendment, as Justice Rehnquist pointed out in Jackson v. Metropolitan Edison Company, draws a sharp distinction between deprivations by the State and deprivations by private people, no matter how wrongful, against which the Fourteenth Amendment offers no appeal.

In terms of equal protection, it may well not be evident who is the plaintiff.

The same disparity of treatment would exist between indigent defendants and nonindigent defendants.

But the State is the plaintiff in this case and the only line that I am urging the Court to draw certainly in terms of due process is a line that involves the fact that the real force, the real moving party in interest here was the State of Connecticut.

Harry A. Blackmun:

Well, you’re taking the Boddie approach, Boddie v. Connecticut.

That’s what you really rely on.

Jon C. Blue:

That is in large part correct, because the fact of the matter is that like the would-be plaintiffs in Boddie, who were would-be plaintiffs, there is no alternative to the judicial process for the defendant in this case.

And I suppose, unlike Boddie, he may not be… Mr. Little may not be analogized to a defendant, he is a defendant, and there’s no question that he should be entitled to the appropriate level of judicial scrutiny that typically–

Harry A. Blackmun:

Well, my inquiry is really whether if we go along with you here we’re not on a slippery slope, wondering where we stop.

Jon C. Blue:

–Well, I’m trying to draw… I understand your… I appreciate–

Byron R. White:

We got on it in Boddie, didn’t we?

Jon C. Blue:

–Well, you quickly got off in Kras and Ortwein.

Byron R. White:

Yes, indeed.

Jon C. Blue:

But the way you got off, and the distinction that you drew to get off, was the distinction between voluntary and involuntary litigants.

The Court emphasized in Kras and reemphasized in Ortwein that the would-be plaintiffs in those cases had alternatives to the judicial process, alternatives which the defendant here in this case simply doesn’t have.

William H. Rehnquist:

But in Cuyler v. Sullivan, last year, in which this Court held that the standard for performance of counsel retained was the same as the counsel appointed, because the resulting judgment was the judgment of a state court imposing a certain penalty on a person, and therefore it was state action.

Jon C. Blue:

Like in Shelley v. Kramer?

William H. Rehnquist:

Yes.

Well, wouldn’t that apply here too, whether it’s a private plaintiff or the State is a plaintiff?

The resulting judgment is the judgment of a state court saying that Defendant D is the father of the plaintiff?

Jon C. Blue:

Mr. Justice Rehnquist, that is a legitimate argument, and the Court might well rightfully hold that the same result should pertain to all defendants, whether or not they’re prosecuted by the State.

But I want to point out that the fact remains that the real plaintiff here, throwing all its power and resources at the indigent defendant, was the State.

And in terms of traditional due process analysis, that makes a great deal of difference.

Byron R. White:

Well, didn’t the State also require this suit?

Jon C. Blue:

Oh, it’s absolutely mandated by state law which is, in turn, mandated by federal law, although the state law–

Byron R. White:

Because the mother, to get benefits, must reveal–

Jon C. Blue:

–That’s correct.

Byron R. White:

–the putative father and bring action.

Jon C. Blue:

That’s absolutely correct.

William J. Brennan, Jr.:

Well, she doesn’t bring it.

The Department of Social Services brings it.

Jon C. Blue:

That’s right.

She–

William J. Brennan, Jr.:

That’s really the State of Connecticut.

Jon C. Blue:

–That’s right.

William J. Brennan, Jr.:

And this case wasn’t… the State suffered some expenses which were then taxed as costs, were they not, against the appellant?

Jon C. Blue:

In this case, yes.

I think it’s on pages 20 and 21 of the Joint Appendix.

Byron R. White:

You’ve made an extensive survey of these cases, I note in your brief.

Maybe you know the answer to this.

Suppose there’s a judgment against the putative father in a case like this and there has been no blood test.

And he’s determined to be the father.

And he can’t afford a blood test or for some… later he has a blood test and it’s proved that he isn’t.

Byron R. White:

Can the case be reopened or does res judicata bar it?

Jon C. Blue:

That’s a question I would like for you, very much to see you ask my colleague, Mr. McGovern.

Under Connecticut state law, as I have pondered the question, I believe that the judgment is clearly res judicata.

It would ease–

Byron R. White:

Well, there are limits to res judicata, when there hasn’t been a fair trial or something.

Jon C. Blue:

–Oh, absolutely.

The question has not been litigated in Connecticut to the best, as best I have researched it.

Byron R. White:

Well, how about around the country, or do you know?

Jon C. Blue:

I don’t know, and I’m not sure that the question has even come up.

Let me explain the practical reason why the question probably has never come up.

I should think it would.

Jon C. Blue:

The problem is that it’s not just the matter of a man who has suddenly won the lottery after years of indigency walking into a hospital and asking for a blood test to be taken.

The blood test must be taken from the child, the mother, and the putative father, and in order to practically arrange for that type of a blood test to be taken you need a court order.

And in the absence of an existing open case, that type of court order is virtually impossible to get.

I don’t know of a single case in which, at any level, at which that question you raise has been decided and I suspect that the reason is the very practical reason that I’ve discussed, which simply points out the fact that because of the fortuity that the defendant is indigent at the time the case is brought, and if he is indeed found guilty without the absence of blood test evidence he, so far as I can determine, will never in practical or legal terms be able to reopen that case.

And any money that he gets subsequently that might be used to pay for a blood test will in fact only be usable to pay for the judgment deficiency against him.

William H. Rehnquist:

In this case, in Connecticut, is it a jury case or a court case?

Jon C. Blue:

A Connecticut statute now requires, I believe, a $60 fee for a jury.

My client did not have the money to pay for that jury.

The case ultimately went to a court trial with a trial judge.

William H. Rehnquist:

Throughout the country, in your survey, is there any preponderance of evidence, or preponderance of practice as to whether these cases are tried by juries or by judges?

Jon C. Blue:

It’s my strong impression, Justice Rehnquist, that in virtually all states the issue is at least triable before a jury.

Warren E. Burger:

Counsel, we’ve taken, or you have taken with us two-thirds of your time on this scientific-medical.

I’ll just ask you one short question.

Are you familiar with the numerous cases of malpractice brought against laboratories that do blood testing for making errors in the blood tests which cause damage to the people involved because the doctors relied on the tests?

Are you familiar with the fact that that’s happened?

Jon C. Blue:

Mr. Chief Justice, perhaps through my own lack of knowledge I’m not familiar with those cases in the particular context of blood grouping tests in paternity cases.

I mean, there are a variety of blood tests.

For instance, tests for venereal disease–

Warren E. Burger:

Would you use a blood–

Jon C. Blue:

–which might in fact be quite different.

Warren E. Burger:

–You use it for other purposes than paternity cases, do you not?

Jon C. Blue:

Yes.

Different types of tests.

I mean, the fact of the matter is that blood test is a generic term.

What we are talking about here is a blood grouping test.

Warren E. Burger:

But you use blood grouping tests for other purposes than paternity cases, do you not?

Jon C. Blue:

Possibly.

I–

Warren E. Burger:

If you give the wrong blood to a person in a transfusion, you’re in a very serious business.

That’s where some of these malpractice suits have developed.

Jon C. Blue:

–Okay.

Well, my only… I’m not familiar with that phenomenon, although I’m not disputing that the phenomenon may exist.

My point, Mr. Chief Justice, is not… is simply the fact that blood grouping tests in the context of ongoing paternity cases are treated as controlling and decisive.

And this fact, this indisputable fact… I don’t think that the Attorney General even disputes it… necessarily results in, when you have a distinction like the Connecticut Legislature has drawn in this case, of a gross disparity between the indigent and the non-indigent in as far as the quality of justice administered or received by these litigants, not just wealthy litigants, but nonindigent litigants receive if they are innocent, are overwhelmingly likely to receive swift, scientific, certain exoneration, whereas all indigent defendants regardless of their actual guilt or innocence are thrust into swearing contests in which the trier of fact will often desperately try to arrive at the correct result.

Potter Stewart:

This isn’t a matter of guilt or innocence, is it?

Hasn’t Connecticut said these are civil proceedings?

Jon C. Blue:

Connecticut labels them as civil but–

Potter Stewart:

Well, guilt or innocence has to do only with criminal proceedings.

Jon C. Blue:

–In Connecticut, if you research Connecticut law, the findings in paternity cases are specifically referred to as guilty or not guilty.

In fact… this was not a jury case, but in a paternity jury case, the jury will be instructed by the trier of fact, by the court, to deliver a finding of guilty or not guilty.

Potter Stewart:

Mr. Blue, I reckon I’ve interrupted you.

Earlier I asked you a question which you accepted the premise of, that the difference between this sort of evidence and ordinary expert testimony is that the latter is invariably opinion testimony.

But the more I think about it the less clear a line that is, when one begins to think about handwriting experts and ballistics experts.

There can be a difference of opinion as to facts, can’t there?

Jon C. Blue:

I would still draw a distinction between this type of evidence which is–

Potter Stewart:

Is it more like fingerprinting?

Jon C. Blue:

–in practice is universally exculpatory, and the type of ballistics evidence which is typically just an indication of guilt or innocence rather than… a ballistic showing will rarely in and of itself show–

Potter Stewart:

Well, maybe… what you try to show is that this is or is not this person’s handwriting, and that this bullet was or was not fired by this gun, or that these are or are not somebody’s fingerprints.

Jon C. Blue:

–I’m not an expert in handwriting or ballistics–

Potter Stewart:

My only thought is that the distinction upon which we agreed a while ago may be a blurred distinction.

Jon C. Blue:

–Well, I would argue with that.

I think that in practice it is simply not–

Byron R. White:

I take it you say that every doctor or technician who, looking at the same evidence, the same comparison, would come to the same result?

Jon C. Blue:

–Where there is a showing of exclusion that is in fact the case.

There is no–

Byron R. White:

Well, if they would all agree that–

Jon C. Blue:

–Yes, sure.

It’s unlike psychiatric testimony.

Byron R. White:

–All agree that this blood is or isn’t the same as the other blood?

Everybody should agree.

Jon C. Blue:

That’s right, that’s right.

It is not like the example I used of psychiatric testimony in a criminal proceeding where you will have expert witnesses on either side testifying the opposite thing.

That is–

Byron R. White:

Has that ever happened in any of these cases you’ve ever seen where some incompetent person does the reading of the test?

And has there ever been a dispute in one of these cases as to whether or not the blood is or isn’t the same?

Jon C. Blue:

–I know of no… I mean, obviously, the example you give is a conceivable example.

I simply know of no such case and the courts–

John Paul Stevens:

Well, it’s not even conceivable, is it, because you just take another test if you had doubt about whether you got the right one.

Jon C. Blue:

–Well, that’s exactly it.

And the important thing that I want to leave this Court with, now that my time is about to expire, is that the fact that these tests are universally given decisive and controlling importance is the fact that creates the disparity between the nonindigent and the indigent that’s at issue in this case.

I’ll reserve whatever time I have left for rebuttal.

Lewis F. Powell, Jr.:

May I ask you a question, Mr. Blue, before you sit down?

When you come back with your reply, if you could state a limiting principle, in light of all the questions that have been asked you, it would be very helpful to me.

Jon C. Blue:

With the Chief Justice’s permission I’ll do that now, since my time has just expired.

Lewis F. Powell, Jr.:

How do you avoid the slippery slope type questions that have been asked here in some abundance, as a general principle the courts can apply?

Jon C. Blue:

That’s right.

The distinctions I would draw are, one, the role of the State in this case, which I think is a legitimate distinction this Court can draw.

And, two, the nature of the evidence which, unlike other evidence either expert or other testimonial evidence, is when it yields a finding of exoneration will conclusively and beyond dispute show that in fact the defendant is not the father of the child in question.

It is that type of conclusive aspect to the evidence in question that I think is a legitimate distinguishing principle that this Court can avoid the slippery slope which I know that it obviously will have in mind.

Jon C. Blue:

But I think that the Court by crafting its opinion in that way can avoid the implications that the court did, you are concerned with, Justice Powell.

Byron R. White:

Well, have efforts been made and rejected in the great State of Connecticut to have public financing of tests like this, or to receive financing for tests like these from some private sources?

Jon C. Blue:

I simply don’t know–

Byron R. White:

After all, there are only two states, apparently, that–

Jon C. Blue:

–Connecticut and North Carolina.

Byron R. White:

–that don’t have some way of paying the cost.

Jon C. Blue:

As the amicus brief points out, even to Connecticut, under federal regulations, the Federal Government would reimburse 75 percent of the cost, but the State would have to pay for it first.

Byron R. White:

Well, have there been proposals in the State Legislature that have been rejected or not?

Or do you know?

Jon C. Blue:

If there have been those proposals, and there doubtless have, at some point, they simply haven’t gotten very far.

Thank you.

Warren E. Burger:

Mr. McGovern.

Stephen J. McGovern:

Mr. Chief Justice, and if it may please the Court:

My name is Stephen J. McGovern.

I’m Assistant Attorney General in the State of Connecticut.

I think it should be pointed out in this case that paternity actions in the State of Connecticut are civil litigations.

Mr. Blue’s brief tries to–

Harry A. Blackmun:

Well, that’s what you call them, but are they really civil?

Stephen J. McGovern:

–Yes, Your Honor.

I’d like to explain that in the State of Connecticut a paternity action is instituted by a verified petitioner with a summons and an order to appear at a date certain for trial.

Harry A. Blackmun:

Let me ask this.

There is a judgment here and support money has to be paid.

Supposing he doesn’t pay it.

Can he be incarcerated for nonpayment?

Is that a criminal act?

Stephen J. McGovern:

No, it isn’t, Your Honor.

There is a state statute which provides for nonsupport.

That is a criminal statute.

However, stemming from the paternity judgment, in the paternity section of our statutes there is a provision for contempt citations.

They are civil contempts.

Stephen J. McGovern:

They’re remedial in nature and they’re not punitive.

The goal of these contempts is to secure the money that is not paid.

To have the defendant in a paternity case be found to be in contempt of court for nonpayment of support, there must be a showing that he willfully failed to meet the support order.

He either refused or neglected to pay it.

The fact the defendant is indigent would certainly not be the basis for his incarceration as being in contempt.

The paternity action is brought by a regular civil complaint for a date certain.

As in other states… some states provide that a defendant would be arrested and have to post bail.

That is not the case in Connecticut.

A civil trial is held, there is an adjudication, possibly, of paternity.

That adjudication certainly doesn’t subject the defendant to incarceration.

Thurgood Marshall:

Did you say that he is “guilty”?

Stephen J. McGovern:

The only aspect–

Thurgood Marshall:

Is that right?

Stephen J. McGovern:

–That is correct, Your Honor.

And I would say, that is the only aspect of the proceedings which may make it appear to be criminal in nature.

In every other aspect it is civil in nature.

The contempt proceeding which I’ve alluded to is an independent action brought under another statute.

It does not stem from a paternity judgment itself.

William H. Rehnquist:

Mr. McGovern, do you understand the gist of your opponent’s complaint in this case to be the failure of the State of Connecticut to allow blood grouping tests to be taxed against a state or against the private plaintiff, if it were to go that far, if the blood grouping tests prove to the satisfaction of the trier of fact that the defendant is not the father, or the failure to advance the money necessary to get the blood grouping test?

Stephen J. McGovern:

There is no provision in the statute, Your Honor, for the taxing of cost.

The paternity statute itself, under which judgment is entered, provides that the cost of support and maintenance of the minor child, attorneys’ fees, sheriff’s fees, may be taxed as cost.

There is no provision under the statute that the cost of the blood grouping test be paid and I have never seen a case in which a defendant prevailed in the State of Connecticut in which costs were taxed against the State.

Thurgood Marshall:

Well, if you did, if you put the costs of this blood test in the costs, he would have to pay it, wouldn’t he?

Stephen J. McGovern:

Yes, Your Honor.

Thurgood Marshall:

Why didn’t you do that?

Why couldn’t the State do that?

All the other courts do it.

Stephen J. McGovern:

I think this is–

Thurgood Marshall:

Doesn’t the state do it in all the other costs?

Stephen J. McGovern:

–State pays for the attorney, Your Honor–

Thurgood Marshall:

And the court, the judge, and everything, didn’t they?

They paid for all the costs but this.

Stephen J. McGovern:

–That’s correct, Your Honor.

Byron R. White:

Do they pay–

Stephen J. McGovern:

That’s just one piece of evidence.

Your Honor.

Byron R. White:

–Do they pay for the lawyer for the defendant?

Say an indigent defendant is sued, does the–

Stephen J. McGovern:

The State does not pay for the lawyer.

It would appear in this case that Mr. Blue is from Legal Aid for Prisoners.

I believe the State funds that organization so in effect the State is–

Byron R. White:

–Well, it’s the essay… the State is paying the lawyer in this case, for the defendant?

Stephen J. McGovern:

–Yes, it is.

Byron R. White:

And in any other case, if it goes to contempt proceedings, would the State insure that the defendant in that contempt proceedings which you say is a separate matter has a lawyer?

Stephen J. McGovern:

I would say, Your Honor, if he was incarcerated, as is the case here, yes.

If he wasn’t incarcerated, he would be directed by the court to go to a legal assistance.

I have not seen a case where the court will appoint an attorney to represent somebody in a contempt hearing.

John Paul Stevens:

General McGovern, do you know, in a case that does not involve a nonindigent, say, a defendant had a blood test made and he paid for it, could he recover the cost of the blood test from the plaintiff in his cost-taxing costs of litigation?

Stephen J. McGovern:

I believe it might be possible that he could.

I do not know.

John Paul Stevens:

Well, let me ask you another question about costs that Justice Marshall’s question prompted.

Under your practice, if the defendant is in jail and has no money and has ten alibi witnesses that he wants to subpoena to prove he was in Angola or someplace at the time of the alleged incident, does he have compulsory process available to subpoena the witnesses?

Stephen J. McGovern:

I don’t believe he does, Your Honor, no.

John Paul Stevens:

So, any witnesses who would testify on his behalf would be just volunteers?

Stephen J. McGovern:

That’s correct, Your Honor.

Lewis F. Powell, Jr.:

May I ask this question also?

If the defendant in this case had lived a couple of hundred miles away and is not in prison, would the State pay his expenses to come to the trial?

Stephen J. McGovern:

The State in that situation, Your Honor… the case would have been referred to another State agency to bring a reciprocal support action, reciprocal paternity action, and the paternity action would most likely have to be brought in that state.

In the compact among states–

Lewis F. Powell, Jr.:

I’m not talking about a different state.

Lewis F. Powell, Jr.:

Connecticut is–

Stephen J. McGovern:

–I know, within Connecticut itself–

Potter Stewart:

–You can’t be 200 miles away in Connecticut and not be in a different state.

Stephen J. McGovern:

–Pardon me, Your Honor.

Lewis F. Powell, Jr.:

In Virginia you can be 400 miles away.

Stephen J. McGovern:

If the defendant resides in Connecticut, yes.

Lewis F. Powell, Jr.:

You would pay his expenses?

Suppose he said, I’m dead broke, I can’t come to Hartford or wherever you’re going to try me.

Stephen J. McGovern:

No, no, the State would not pay his expenses.

No.

Byron R. White:

What would you do?

Just default, eh?

Default judgment?

Stephen J. McGovern:

No, default without… he has a right to counsel.

Lewis F. Powell, Jr.:

He wouldn’t be there to testify.

Stephen J. McGovern:

He’s served by a sheriff for him to appear at a date certain under cited court order.

Correct, if he doesn’t appear, yes, a default would enter.

That’s correct.

In a paternity litigation, if a defendant does not appear for trial, a default will enter against him.

William J. Brennan, Jr.:

That would happen–

Stephen J. McGovern:

But first he has four months to reopen the judgment.

William J. Brennan, Jr.:

–So if the proceeding were brought in New Haven and he lived in Hartford–

Stephen J. McGovern:

Yes, Your Honor.

William J. Brennan, Jr.:

–Service would be made in Hartford by the sheriff of the county in which Hartford is located, is that it?

Stephen J. McGovern:

Yes, Your Honor.

William J. Brennan, Jr.:

And then this would call upon him to respond in New Haven, appear?

Stephen J. McGovern:

That’s correct, Your Honor.

William J. Brennan, Jr.:

And the State would not pay his, whatever the cost would be from Hartford to New Haven?

Stephen J. McGovern:

His transportation fees?

No.

Warren E. Burger:

In this respect, it would be no different from a traffic violation or a negligence case or any other case, would it?

Stephen J. McGovern:

Exactly.

This is a civil litigation.

If the State was bringing an action, some other civil action, for reimbursement–

Byron R. White:

Well, it isn’t exactly like civil litigation in a sense because the State requires that this action be brought.

Thurgood Marshall:

What other civil action does the State pay for the lawyer to prosecute the action for a private individual?

Stephen J. McGovern:

–I don’t believe there’s any other, Your Honor.

Thurgood Marshall:

Just this one?

Stephen J. McGovern:

Yes, Your Honor.

Thurgood Marshall:

But it’s still civil?

Stephen J. McGovern:

Yes, Your Honor.

Warren E. Burger:

We resume there at 1 o’clock, counsel.

Stephen J. McGovern:

Thank you.

0 [Recess.]

Warren E. Burger:

Mr. McGovern, you may continue.

Stephen J. McGovern:

Mr. Chief Justice, and may it please the Court:

Due process requires that the defendant be given an opportunity to be heard in a meaningful manner at a meaningful time.

It is the State’s position that even without a blood grouping test he has an opportunity to be heard in a meaningful way.

Defendant in this action, the appellant here, has legal counsel at no cost.

He has the ability to cross-examine the plaintiff in the action.

He has the ability to take the witness stand on his own behalf, he has the ability to call witnesses, he has the ability to use all the discovery techniques available within our civil rules.

Potter Stewart:

Under Connecticut law, don’t I remember from the briefs that the defendant in an action such as this has something pretty close to the burden of proof?

Stephen J. McGovern:

That is true, Your Honor.

There is a burden of proof on the–

Potter Stewart:

So it’s not just his burden to disprove the State’s case, which would be what cross-examination might do?

Stephen J. McGovern:

–Yes, Your Honor.

Potter Stewart:

He has the affirmative burden of proof.

Stephen J. McGovern:

The plaintiff has the burden of proof.

She must remain constant in her accusation.

And that constancy can be attacked under cross-examination.

Potter Stewart:

But doesn’t the defendant have some sort of an unusual burden in a case like this under Connecticut law?

Stephen J. McGovern:

Under Connecticut law, if the plaintiff does remain constant in her accusation, and by preponderance of the evidence, the court may find the defendant to be the father of the child.

Potter Stewart:

I read these briefs some time ago–

Thurgood Marshall:

–Doesn’t he have to do something other than his own testimony?

Doesn’t Connecticut require him to do more than just testify himself?

Stephen J. McGovern:

If the plaintiff remains constant in her accusation, yes, Your Honor.

Thurgood Marshall:

So he does have a burden in doing more than the direct testimony.

Stephen J. McGovern:

He does have the burden of–

Byron R. White:

Well, what if all the evidence in the case… what if the judge thinks that all the evidence in the case including his testimony and any other evidence is an equipoise?

Stephen J. McGovern:

–I’m sorry, Your Honor?

Byron R. White:

Well, what if it’s just evenly balanced, does he have the burden, ultimate burden to convince the judge by a preponderance of the evidence?

Stephen J. McGovern:

Yes, Your Honor.

Byron R. White:

That’s what I thought; yes.

Stephen J. McGovern:

Yes, Your Honor.

In this case, Your Honor, the defendant filed 60 interrogatories.

He has other methods available to him besides the blood grouping test in which to defend the action.

John Paul Stevens:

General McGovern, do you disagree though with the general appraisal of the reliability of the blood test that your opponent asserts?

Stephen J. McGovern:

No, Your Honor.

John Paul Stevens:

So if it’s available, that really is the most reliable?

Stephen J. McGovern:

It is the most reliable.

John Paul Stevens:

Let me ask you another question in terms of, we talked about slippery slopes and that sort of thing here, is it possible that there’s another interest that should be considered in the whole equation, and that is, the interest of the child makes it especially important that the correct answer be given in a case like this?

Stephen J. McGovern:

Well, I would agree with that also, Your Honor.

There is an interest of the child to be considered.

But there must be–

John Paul Stevens:

It’s not typical in litigation between private parties?

Stephen J. McGovern:

–That’s correct, Your Honor.

Warren E. Burger:

Well, what’s the purpose of this inquiry?

Is it for anything other than economic purposes?

Isn’t it to decide whether–

Stephen J. McGovern:

The Supreme Court of Connecticut has stated that paternity action is nothing more than a shifting of economic arrangements from one party to another.

Stephen J. McGovern:

Paternity legislation in Connecticut is considered to fall in social… as social and economic legislation.

William H. Rehnquist:

–Is that the same whether the action is initiated by the State or by the private plaintiff?

Stephen J. McGovern:

That’s correct, Your Honor.

William H. Rehnquist:

And is the burden of proof the same, whether it’s initiated by the State or by the private plaintiff?

Stephen J. McGovern:

Yes, it is, Your Honor.

There’s no differentiation.

Harry A. Blackmun:

I think you’ve, in your answer to Mr. Justice Stevens, indicated that the child has an interest in this litigation.

And if that’s so, could it be argued that the State has the duty to provide the best evidence possible?

Stephen J. McGovern:

I think, if we look at the statute, Your Honor, the statute is written to only allow admissibility of the test to exclude the defendant.

The statute does not, cannot be used, to include the defendant.

Harry A. Blackmun:

So?

Stephen J. McGovern:

So, I feel, if the statute remains in its current form, the rights of the child can best be protected by having the test paid for by the party who seeks to provide the evidence.

Harry A. Blackmun:

Well, here’s an indigent who can’t afford to pay it, and it might be that the real father is not indigent.

Wouldn’t the State be better off if they could locate the real father?

Stephen J. McGovern:

Well, we have to assume, Your Honor, that the mother has named the real father.

Byron R. White:

Why?

Well, there’s a… I guess statistics show that errors have been made.

Stephen J. McGovern:

There have been errors made, but in the majority of instances, certainly–

Byron R. White:

This process would eliminate a good many possible errors.

Stephen J. McGovern:

–Certainly, Your Honor, and the majority, in most of the cases, the defendant who is named in the litigation is found to be the father.

It’s not a case of–

Thurgood Marshall:

Well, why have the hearing?

If the mother is willing, why have the hearing?

The question is, you said that when the mother said that this is the man, that’s it.

My answer is, why hold the hearing?

The mother says… in this particular case, is anybody certain that this man is the father, as of now?

Stephen J. McGovern:

–Yes, Your Honor.

Thurgood Marshall:

How can you be certain when he’s never had a blood test, when there is a possibility that the blood test would show that he was not the correct one?

Stephen J. McGovern:

Your Honor, this is civil litigation.

We’re asking the State to fund a defense for a man with civil litigation.

Stephen J. McGovern:

We have to assume that on the facts presented at the trial, that the judge weighed the evidence–

Thurgood Marshall:

I agree with Justice Blackmun.

This is labeled a civil action, but it was brought by the State.

Stephen J. McGovern:

–It was brought by the plaintiff, Your Honor.

The plaintiff’s mother–

Thurgood Marshall:

Who gave the plaintiff the lawyer to bring the suit?

Stephen J. McGovern:

–The state funded the attorney.

Thurgood Marshall:

And the State asked her to bring it.

Required her to bring it, if she wanted any support.

Stephen J. McGovern:

Required her?

Certainly.

That’s correct.

Thurgood Marshall:

If she wanted benefits.

And that’s a private litigation.

Stephen J. McGovern:

Yes, Your Honor.

Thurgood Marshall:

Are you going to put “private” into quotes?

I’m not sure I’ll buy it in quotes.

Warren E. Burger:

Well, isn’t… going back to one of your previous responses, is there any question about that the purpose of the proceeding is purely economic, to identify the person who is responsible for the future support of the child?

Stephen J. McGovern:

That’s correct, Your Honor.

That is what the Supreme Court of Connecticut has held in the case of Robertson v. Apuzzo.

William J. Brennan, Jr.:

Well, more accurately, it’s to shift, it’s to shift the burden of support if they can locate the father from the State, because all this is, she doesn’t get any assistance of any kind if in fact they can find the father able to support the child.

Isn’t that right?

Stephen J. McGovern:

If… that’s correct.

If the father has the financial ability to meet the needs of the child, which are greater that the amount of assistance that the State gives the child, she would be removed.

William J. Brennan, Jr.:

Otherwise, the mother, to support the child, would have the benefit of public assistance, wouldn’t she?

Stephen J. McGovern:

Yes.

Lewis F. Powell, Jr.:

Mr. McGovern, I’m not clear as to the burden of proof.

This suit was instituted by the mother.

Stephen J. McGovern:

Yes, Your Honor.

Lewis F. Powell, Jr.:

And does she have the burden of persuasion, the overall burden of proof throughout the trial?

Stephen J. McGovern:

She has the burden of showing that the defendant is the father by a fair–

Lewis F. Powell, Jr.:

Well, that’s at issue, isn’t it?

That’s at issue, isn’t it?

Stephen J. McGovern:

–Yes, Your Honor, by a fair preponderance of the evidence.

Lewis F. Powell, Jr.:

All right.

Stephen J. McGovern:

Not beyond a reasonable doubt–

Lewis F. Powell, Jr.:

I understand.

Stephen J. McGovern:

–as in a criminal litigation; by a fair preponderance of the evidence.

Lewis F. Powell, Jr.:

She has the normal burden in a civil case?

Stephen J. McGovern:

That’s correct, throughout this trial.

Lewis F. Powell, Jr.:

That isn’t what you said a minute ago.

I thought you–

–Throughout this trial.

Stephen J. McGovern:

Excuse me, Mr. Justice.

Lewis F. Powell, Jr.:

Well, I’m trying to find out your question that led him to say just the opposite, I think, Mr. Justice White.

Well, I didn’t think it led him anywhere.

I thought something led him.

I never heard of a civil plaintiff not having the burden of proof, not having the burden of persuasion throughout a trial.

Stephen J. McGovern:

She does have have the burden of proof and the defendant can introduce evidence to rebut it.

Lewis F. Powell, Jr.:

Of course.

But who has the ultimate burden of persuasion at the end of the trial?

Stephen J. McGovern:

The plaintiff.

Byron R. White:

Well, you answered me just exactly the reverse a little while ago.

I thought you did, anyway, and I thought you answered Justice Stewart that way.

He did answer–

Stephen J. McGovern:

Well, I would state–

Byron R. White:

–I’ll start out this way.

At least his own testimony is never sufficient to overcome–

Stephen J. McGovern:

–His testimony alone is not as long as the plaintiff remains constant in her accusation that the defendant is the father of the child.

Byron R. White:

–So she always prevails, as long as he doesn’t offer any other testimony besides his own?

Stephen J. McGovern:

As long… that’s correct, Your Honor.

William H. Rehnquist:

Can you tell us where in the case materials the statute or decision is that supports the… I too sense somewhat differing answers to the questions.

Stephen J. McGovern:

No, I can’t point to the statute, Your Honor.

William H. Rehnquist:

Well, how can you answer the question then?

I mean, it must be in a case or in a statute.

Stephen J. McGovern:

The case law of Connecticut states that the mother of the child if she remains constant in her accusation that defendant is the father of the child, paternity is an issue.

If she remains constant and that accusation is not rebutted or torn down, yes, the defendant will be found–

William J. Brennan, Jr.:

Well, does that mean this, that she takes the stand, she said, he’s the father, he’s the father, he’s the father, he’s the father.

She never deviates.

He’s the father.

He takes the stand and says, I am not, I am not, I am not, I am not.

And the factfinder believes him and doesn’t believe her, you’re saying–

–She wins.

–she wins.

Is that right?

Even though–

Stephen J. McGovern:

–If that was the testimony, she would win.

William H. Rehnquist:

–What case is it in Connecticut that says–

Potter Stewart:

–The case law begins, discussion of it begins on page 33 of the appellant’s brief, going back first to

“The Book of the General Laws for the People within the Jurisdiction of Connecticut. “

1673.

And then discussing the case of Booth v. Hart, decided in 1876.

Town of Chaplin v. Hartshorne, 1825.

And the other cases discussed there.

William H. Rehnquist:

Thank you, counsel.

Potter Stewart:

That’s at least where my impression came from.

From a careful reading of the brief?

Yes.

Stephen J. McGovern:

The fact that other states have chosen to fund the cost of blood grouping tests does not mean that the State of Connecticut should be made to do likewise.

The State has certain priorities in administering its judicial system.

Stephen J. McGovern:

It chooses to have the litigants in civil litigation bear the cost of that litigation.

I think that this is reasonably based.

Thurgood Marshall:

Who pays for the witnesses for the plaintiff?

Stephen J. McGovern:

In this action there were no witnesses other than the–

Thurgood Marshall:

But, normally, who would pay?

Stephen J. McGovern:

–The party–

Thurgood Marshall:

The State would.

The State pays for the lawyer, it would pay for the witnesses, wouldn’t it?

Stephen J. McGovern:

–The State would probably… yes, Your Honor.

The State would pay for the witnesses; yes.

William H. Rehnquist:

Mr. McGovern, the most recent case cited in the appellant’s brief, to which my brother Stewart has referred, is a case called, cited as 6 Connecticut Circuit Court 516.

What is the circuit court in Connecticut?

Stephen J. McGovern:

The circuit court no longer exists in Connecticut.

That was the court of lower jurisdiction which existed in Connecticut during the early 1970s.

That court was abolished and became the Court of Common Pleas and the courts evolved and merged into one court at this time, a Superior Court.

That was not a decision of the court of highest jurisdiction in the State; a trial court.

William H. Rehnquist:

And what is the most recent decision of the highest court of the State of Connecticut on the subject?

Stephen J. McGovern:

Of blood grouping tests?

William H. Rehnquist:

Yes.

As to preponderance of the evidence, burden of proof, and that sort of thing?

Byron R. White:

Could I suggest that your colleague at the bottom of page 34 of his brief cites a Connecticut Supreme Court case, Mosher v. Bennett?

Stephen J. McGovern:

Yes, Your Honor.

Byron R. White:

And that quote is this:

“The prima facie case so made out. “

–that’s by the plaintiff…

“places upon the reputed father the burden of showing his innocence of the charge, and under our practice he must do so by other evidence than his own. “

Now, it says,

“the burden of showing his innocence. “

And you accept that as the law of Connecticut?

Stephen J. McGovern:

Currently that is the law of Connecticut, Your Honor.

William H. Rehnquist:

That’s a 1929 case.

Has the Supreme Court of Connecticut–

Stephen J. McGovern:

No, it hasn’t.

No.

That issue hasn’t been before the court since then.

Finally, Your Honor, the appellant has argued that, he hasn’t argued today but in his brief that this inability to provide a blood grouping test violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Normally, this Court in making equal protection analysis has used either a strict scrutiny test or a rational basis test.

Strict scrutiny is invoked when there’s a fundamental right which has been violated or a suspect classification exists.

I don’t believe in this case, Your Honor, that the right to a blood test, is a fundamental right in a civil litigation, and also that wealth-indigency is one of those suspect classes which warrant strict scrutiny by the Court and require the Court to show that there’s a compelling State interest in the statute.

The State of Connecticut should be made to comply with the rational basis test and only have to show that there’s a reasonable basis for the statute with the cost being paid only by the party who wishes to use the evidence in the litigation.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.