(concurring specially).
I concur on Issue I because the trial court erred in refusing to allow evidence of McCarty’s sterility. Therefore, I see no need to discuss the Frye test or DNA testing. See Daubert, — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (discarding the Frye test which was superseded by the adoption of the Federal Rules of Evidence).* I would not reach Issue II on attorney fees.
No purpose is served in having a trial on paternity if the defendant can not show evidence of sterility. The Mother identified three men as possible fathers. McCarty *149could not be excluded as the biological father because the probability of paternity ranged from 99.5% to 99.89%. McCarty denies any sexual encounter with Mother. He claims he was tortured by drug dealers in 1982 by application of electrodes to his genitals. He and his wife attempted to have additional children after 1982, but were unsuccessful. Two separate fertility tests conducted upon McCarty for purposes of trial revealed he is sterile and a medical expert was prepared to testify that the torture could have caused the sterility.
The trial court excluded all evidence of McCarty’s sterility, which included the application of electrodes to his genitals, his wife’s inability to conceive after he was tortured, and the medical expert’s testimony, because the expert could not testify to a medical certainty or probability that McCarty was sterile at the time of conception. This is relevant, material evidence, SDCL 19-12-1, and is admissible. SDCL 19-12-2; C.K.A. v. M.S., 695 P.2d 785 (Colo.Ct.App.1984) (defense expert allowed to testify defendant was “probably” sterile at time of conception). The objection to the testimony goes to the weight, not the admissibility. See Nebraska ex rel. Klostermeier v. Klostermeier, 161 Neb. 247, 72 N.W.2d 848 (1955).
The defendant of course denied the acts charged against him. In addition he adduced evidence of sterility on his part. His own testimony in this regard was supported by that of a specialist in the genitourinary field of medicine and surgery. The evidence of this witness supported the claim of sterility produced by surgery at the time of trial. However, he was not able to testify that the surgery was performed before the conception of this child born out of wedlock. The question of sterility was one of fact and for the jury.
Id. at 850-51 (emphasis added).
The jury was entitled to hear this evidence and consider it in making its determination of paternity. See Estate of Kessler v. Loers, 76 S.D. 158, 74 N.W.2d 599 (1956) (mother’s testimony that father was “without power to procreate” convinced trier of fact beyond a reasonable doubt that child was fathered by another man). That is what a jury is for. See State ex rel. Brenden v. Susanka, 74 S.D. 124, 49 N.W.2d 297 (1951) (defense of physical impossibility presents a plain issue of fact for the jury).
Finally, the trial court erred by concluding “the only time relevant to the trial court in a paternity action is the time of conception.” This obviously begs the question, but should not exclude or control relevant evidence. No one can seriously argue that this statement should mean that evidence of sterility at all other times is irrelevant and therefore inadmissible.
"Rule 702, governing expert testimony, provides:
'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.' ”
Id., — U.S. at -, 113 S.Ct. at 2794.