THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

The State, Respondent, 

v. 

Billy Phillips, Petitioner. 

Appellate Case No. 2018-000977 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Jasper County 

Michael G. Nettles, Circuit Court Judge 

Opinion No. 27978 

Heard October 16, 2019 – Filed June 3, 2020 

REVERSED 

Deputy Chief Appellate Defender Wanda H. Carter, of 

Columbia, for Petitioner. 

Attorney General Alan McCrory Wilson and Deputy 

Attorney General Donald J. Zelenka, of Columbia; 

Solicitor Isaac McDuffie Stone, III, of Bluffton, all for 

Respondent. 
JUSTICE FEW: Billy Phillips was convicted of murder and possession of a weapon 

during the commission of a violent crime. At trial, a DNA analyst testified Phillips 

could not be excluded as a contributor to a mixture of DNA recovered from two 

samples taken from the crime scene. The analyst conceded, however, the statistical 

probability that some other randomly selected and unrelated person also could not 

be excluded as the person who left the DNA was—for one of the samples—only one 

in two. In addition, the State failed to explain to the trial court or the jury three 

fundamental concepts underlying the DNA testimony the analyst gave in this 

particular case. Finally—in several instances—the State presented information to 

the trial court and the jury that was simply wrong. We hold the trial court erred in 

not sustaining Phillips' objections to this testimony. We reverse and remand for a 

new trial. 

I. Facts and Procedural History 

Darius Woods was a well-known drug dealer in Ridgeland, South Carolina. His 

customers knew him to carry large amounts of cash. On the night of May 18, 2013, 

two of Woods' customers—Shontay McKeithan and Davonte Freeman—found him 

dead in his house. He was lying on his back with his hands above his head. Someone 

shot him twice with his own .38 caliber revolver, once in the neck and once in the 

head. The shot to the head was a contact wound, meaning the muzzle of the pistol 

was in contact with Woods' skin when the pistol was fired. Law enforcement 

officers found the pistol on Woods' stomach. His jeans pockets had been pulled out 

as though the killer had stolen his money. 

At the January 2016 trial, McKeithan testified she arrived at Woods' house around 

10:30 p.m. to purchase marijuana. She remained in her car while she called Woods' 

cell phone, but Woods never answered. As she waited for Woods to answer, her 

cousin Davonte Freeman arrived to purchase marijuana from Woods. She and 

Freeman called Woods' cell phone again and could hear it ringing inside, but Woods 

did not answer. Freeman then went inside for what McKeithan described as "five to 

seven minutes." McKeithan testified she did not hear any gunshots. When Freeman 

came back outside, he was holding a gun and screaming that Woods was dead. She 

testified he went back inside, and later told her he put the gun where he found it. 

Freeman testified he arrived at Woods' house to buy marijuana and saw McKeithan 

in her car. He knocked on Woods' door but no one answered, so he went in the house 

and found Woods dead on the floor. Woods' gun was on his stomach, and his jeans 
pockets were pulled out. Freeman testified he panicked. He picked up the gun, 

smelled it to determine if it had been fired, and immediately put the gun back on 

Woods' stomach. He testified he was inside less than a minute before he went 

outside to tell McKeithan Woods was dead. He denied he ever took the gun outside. 

Several witnesses testified they saw Phillips in the general vicinity of Woods' house 

within an hour or so before Freeman found the body. Donte Jenkins testified he, 

Woods, and Phillips were hanging out at Woods' house on the evening of the murder. 

Jenkins left Woods and Phillips alone at Woods' house at approximately 9:15 p.m. 

Taylor Cowherd testified she saw Phillips on Woods' porch between 9:25 and 9:31 

p.m. Wrenshad Anderson—Freeman's brother—testified he saw Phillips walking to 

a nearby BP gas station at approximately 9:40 p.m. Reginald Green testified Phillips 

called Green shortly after 10:00 p.m. to ask Green to come pick him up. Green 

testified he picked up Phillips at Phillips' brother's house and then drove to the BP 

station where Phillips went inside to purchase cigars and beer for himself, and $5 

worth of gas for Green. Phillips hung out with Green for a few hours until Green 

dropped Phillips off at a house in the same neighborhood as Woods' house. Each of 

these witnesses testified to circumstances—in addition to seeing Phillips near 

Woods' house—that supported the State's claim that Phillips killed Woods. 

In the early hours of the morning after the murder, a Ridgeland Police Department 

officer approached Phillips on the street and asked him to come to the police 

department to speak with officers about Woods' murder. Two South Carolina Law 

Enforcement Division (SLED) agents interviewed Phillips around 3:00 a.m. The 

State played a video of this interview for the jury. In the interview, Phillips denied 

shooting Woods. Phillips said he visited Woods several times the day of the murder, 

and during these visits, he and Woods smoked marijuana and drank alcohol. Phillips 

explained he held and pointed Woods' gun to imitate law enforcement officers. 

Phillips claimed Woods was alive when Phillips left between 9:30 and 10:00 p.m., 

and he denied being present at the time Woods was murdered. After the interview, 

an investigator collected a DNA sample from Phillips. 

Six days later, SLED conducted a second interview in which Phillips gave a different 

account of what happened. The agent who conducted this interview testified to some 

of the things Phillips said, but the State did not play the video of it for the jury. The 

agent testified Phillips told him he was sitting in Woods' car when three men 

approached Woods' house. One of the men entered the house while the other two 

men remained on the porch. Phillips heard gunshots, and as the three men were 
 

 

leaving, they made eye contact with Phillips. One of the men called Phillips by his 

nickname, "Dee." Phillips told the agent that because he was in fear of his life, he 

got out of the car and ran to his mother's house. The route there required him to pass 

the BP station. Phillips told the agent he gave a different story during his first 

interview because he was afraid something would happen to him or his family. 

During the State's investigation, SLED collected DNA "standards" from six people 

in addition to Phillips. They were Freeman, McKeithan, three officers, and another 

person later determined not to be involved. SLED forensic analyst Lilly Gallman 

compared the DNA standards to "touch DNA"1

 samples collected from the scene of 

the crime and during Woods' autopsy. Of the touch DNA samples Gallman 

analyzed, she excluded Phillips as a contributor to all of the samples except two. 

The first sample—already mentioned—came from Woods' right front jeans pocket. 

The second was taken from the grip of Woods' gun. 

In a written pre-trial motion, Phillips objected to the admissibility of Gallman's DNA 

testimony. The trial court conducted a hearing on the motion before trial, but did 

not take testimony. The court ruled Gallman's testimony was admissible. Phillips 

renewed his objections when Gallman testified during trial. The jury convicted 

Phillips of murder and possession of a weapon during the commission of a violent 

crime. The trial court sentenced Phillips to concurrent prison terms of forty years 

for murder and five years for the weapon charge. The court of appeals affirmed. 

State v. Phillips, Op. No. 2018-UP-081 (S.C. Ct. App. filed Feb. 14, 2018). We 

granted Phillips' petition for a writ of certiorari. 

II. Admission of DNA Expert Testimony 

In State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999)—this Court's first opportunity 

to study the admissibility of expert opinion on DNA evidence under our new Rules 

of Evidence—we upheld the trial court's decision to admit DNA evidence that (1) 

implicated the defendant in a heinous murder and sexual assault and (2) exonerated 

the person the defendant blamed for the crimes. 335 S.C. at 17, 515 S.E.2d at 516. 

Our focus in Council was on the scientific methodology used by the FBI expert to 

1

 "Touch DNA" is one of the three fundamental concepts we mentioned in the 

introduction to this opinion. As we will explain in detail in Section II.C.—in which 

we address all three concepts—touch DNA is taken from skin or other cells left on 

a surface after it was touched. 
analyze the DNA evidence. Concluding that the expert's method—mitochondrial 

DNA analysis of pubic hair found at the crime scene—was sufficiently reliable, we 

set forth what has become the standard South Carolina formulation of the elements 

of the foundation for scientific evidence under Rule 702. "When admitting scientific 

evidence under Rule 702," we held, "the trial judge must find the evidence will assist 

the trier of fact, the expert witness is qualified, and the underlying science is 

reliable." 335 S.C. at 20, 515 S.E.2d at 518. We also held that—"if the evidence is 

admissible under Rule 702"—the trial court must determine whether the probative 

value is substantially outweighed by the dangers listed in Rule 403. Id. 

The "assist the trier of fact" element of the Rule 702 foundation was not specifically 

litigated in Council, nor was Rule 403. In particular, because the expert testified the 

DNA evidence established the other person "could not have been the donor" of the 

pubic hair, 335 S.C. at 17, 515 S.E.2d at 516, and "most probably the hair . . . 

belonged to [the defendant]," 335 S.C. at 18-19, 515 S.E.2d at 517, there could not 

have been any doubt the evidence would "assist the trier of fact." Presumably for 

the same reasons, the defendant did not challenge the probative value. 

In this case, however, Gallman testified the statistical probability that another 

person—not Phillips—could have been the contributor to the touch DNA sample 

taken from the gun was one in two hundred, and the probability another person was 

the contributor to the jeans pocket sample was one in two. Phillips argues these 

probabilities substantially undermine the probative value of Gallman's testimony, 

which in turn raises the question of whether Gallman's testimony satisfied the "assist 

the trier of fact" element. Phillips also argues Gallman's testimony was unfairly 

prejudicial, confusing, and likely to mislead the jury, and these dangers substantially 

outweighed the low probative value of her testimony under Rule 403. 

A. Gallman's Testimony 

Gallman analyzed at least thirteen touch DNA samples collected in connection with 

Woods' murder: two samples from the grip of the gun; eight samples from Woods' 

blue jeans; and three other samples from socks and a piece of jewelry found at the 

crime scene. Two of the thirteen samples could not be reliably tested. Of the eleven 

remaining touch DNA samples, Gallman compared each one to the standards from 

the seven people who submitted DNA for testing. She concluded Phillips' DNA was 

not present in nine of the samples. In the words Gallman used to describe this 
 

 

 

conclusion to the jury, she "excluded" Phillips as a contributor to the DNA in each 

of these nine samples. 

As to the other two samples—one from the gun and one from inside Woods' jeans 

pocket—Gallman testified each contained a mixture of DNA from at least three 

people. She testified Woods and Phillips "cannot be excluded as contributors" to the 

mixtures in either sample. The other people who submitted standards for testing— 

including Freeman—were excluded, except that one of the officers could not be 

excluded as a contributor to the sample from the gun. 

Gallman testified DNA experts "are required" to determine the probability of an 

error in matching the suspect to a particular DNA sample.2

 Gallman then explained 

the likelihood it was another person who left his DNA on the gun or in the jeans 

pocket. As to the sample from the gun, she testified "the probability of randomly 

selecting an unrelated individual who could have contributed to this mixture is 

approximately one in two hundred." As to the jeans, she testified the probability 

was "one in two." Gallman did not explain how she calculated the probabilities. 

B. Probative Value 

The primary basis for Phillips' objection to Gallman's testimony was Rule 403. We 

begin our analysis of a Rule 403 objection with probative value. To understand the 

probative value of any evidence, we must consider what was practically in dispute 

at trial. State v. Gray, 408 S.C. 601, 610, 759 S.E.2d 160, 165 (Ct. App. 2014). 

Woods was clearly murdered; the only significant issue—as a practical matter—was 

who murdered him. We must then consider how important the challenged evidence 

is to resolving the practically disputed questions. See State v. James, 355 S.C. 25, 

35, 583 S.E.2d 745, 750 (2003) (stating "the probative worth of any particular bit of 

2

 Gallman testified, "We are required to tell you how often you would see this 

mixture in a population." Academic sources are more precise. See, e.g., National 

Research Council, DNA TECHNOLOGY IN FORENSIC SCIENCE 9 (1992) ("Interpreting 

a DNA typing analysis requires a valid scientific method for estimating the 

probability that a random person by chance matches the forensic sample at the sites 

of DNA variation examined. To say that two patterns match, without providing any 

scientifically valid estimate . . . of the frequency with which such matches might 

occur by chance, is meaningless."). 
 

 

evidence is obviously affected by the scarcity or abundance of other evidence on the 

same point" (quoting Old Chief v. United States, 519 U.S. 172, 185, 117 S. Ct. 644, 

652, 136 L. Ed. 2d 574, 590 (1997))); Gray, 408 S.C. at 610, 759 S.E.2d at 165. 

In most murder cases, who touched the murder weapon would be extremely 

important to the question of who committed the murder. In this case, however, 

Phillips admitted he spent several hours at Woods' house that day, and he held 

Woods' gun to imitate law enforcement officers. Phillips' own admissions placed 

him at the scene of the crime, holding the gun. Thus, the probative value of 

Gallman's testimony connecting Phillips to the DNA on the gun is minimal. 

Evidence that Phillips had his hand in Woods' pocket, on the other hand, could have 

far more probative value. The State's theory of the case was that Phillips was mad 

at Woods for tricking him out of a PlayStation, and Phillips murdered and robbed 

Woods in retaliation, knowing Woods carried a lot of cash. DNA evidence placing 

Phillips' hand inside Woods' jeans pocket—where he presumably kept his cash— 

would be pivotal to the State's ability to convince the jury its theory was correct, and 

thus prove the primary disputed fact: who murdered Woods. Contrary to the 

evidence Phillips handled Woods' gun, there is no known "innocent" reason for 

Phillips to have his hand in Woods' pocket. At first glance, therefore, the probative 

value of the evidence appears high. 

This brings us to the heart of Phillips' objection. While evidence Phillips had his 

hand in Woods' pocket could be important to the State in proving its theory of the 

case, Gallman did not testify the DNA evidence showed Phillips had his hand in 

Woods' pocket. Rather, Gallman testified her analysis of the touch DNA sample 

from Woods' pocket revealed a mixture of DNA from at least three people. 

Importantly, Gallman did not testify Phillips was one of those people. In her words, 

"Phillips cannot be excluded as [a] contributor[] to this mixture." She testified that 

one in two people—half of the population—could have been the person who left the 

DNA in Woods' pocket. In other words, even if Gallman's testimony were clear and 

readily understood, the best she could do with her DNA analysis was to narrow the 

identity of the person who had his hand in Woods' pocket—the murderer according 

to the State's theory—to half of the population. The probative value of Gallman's 

testimony connecting Phillips to the DNA in Woods' jeans pocket is minimal. 
 

C. Unfair Prejudice, Confusion, Misleading the Jury 

The minimal probative value of Gallman's testimony must be balanced against "the 

danger of unfair prejudice, confusion of the issues, or misleading the jury." Rule 

403, SCRE. Phillips argues all three are applicable here. 

Most of our Rule 403 cases involve only unfair prejudice. Unfair prejudice is the 

tendency of the evidence to suggest a decision based on something other than the 

legitimate probative force of the evidence. Gray, 408 S.C. at 616, 759 S.E.2d at 168. 

Phillips argues Gallman's DNA testimony was unfairly prejudicial because it 

confused and misled the jury. However, Phillips offers no legal authority to support 

his argument that confusion of issues or misleading the jury can itself be unfair 

prejudice.3

 We believe the danger of unfair prejudice is a separate analysis from the 

danger of confusion of the issues or misleading the jury. 

We turn, therefore, to the danger that Gallman's testimony would confuse the issues 

or mislead the jury. DNA evidence is well known as a powerful and accurate 

evidentiary tool for the State to solve crimes and obtain convictions. Nevertheless, 

DNA evidence has also come to be known for its potential to confuse and mislead 

jurors. This potential has been widely discussed by courts and in academic writing. 

In United States v. Bonds, 12 F.3d 540 (6th Cir. 1993), for example, the Sixth Circuit 

recognized, "The aura of reliability surrounding DNA evidence does present the 

prospect of a decision based on the perceived infallibility of such evidence . . . ." 12 

F.3d at 567-68. More recently, the New York Court of Appeals recognized, "The 

persuasiveness of DNA evidence is so great that as one commentator noted, 'when 

DNA evidence is introduced against an accused at trial, the prosecutor's case can 

take on an aura of invincibility.'" People v. Wright, 37 N.E.3d 1127, 1137 (N.Y. 

2015) (quoting Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of 

High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. 

Rev. 1453, 1469 (2007)). The Wright court also stated "the potential danger posed 

to defendant when DNA evidence is presented as dispositive of guilt is by now 

obvious." Id. The Maryland Court of Appeals wrote "jurors place a great deal of 

3 But see 29 Am. Jur. 2d Evidence § 326 (2019) ("Unfair prejudice may arise from 

evidence that . . . confuses or misleads the trier of fact . . . ." (citing State v. Franks, 

335 P.3d 725, 729 (Mont. 2014))). 
 

 

trust in the accuracy and reliability of DNA evidence. But this evidence has the 

potential to be highly technical and confusing in a way that could unduly affect the 

outcome of a trial." Whack v. State, 73 A.3d 186, 188 (Md. 2013).4 

In most cases, the risk of confusing or misleading the jury with DNA evidence is 

low because—in most cases—the DNA evidence is straightforward and reliable, and 

its legitimate probative force is highly persuasive—if not dispositive—of guilt. In 

Council, for example, the DNA expert performed mitochondrial DNA analysis on 

pubic hair found at the crime scene. He testified the hair "most probably" belonged 

to the defendant, and the hair certainly did not belong to the person the defendant 

blamed. 335 S.C. at 18-19, 515 S.E.2d at 517. As long as the jury believed the 

4

 In 2008, the American Psychological Association published an article summarizing 

the results of three studies concerning the impact of DNA evidence on jurors. Joel 

D. Lieberman et al., Gold Versus Platinum: Do Jurors Recognize the Superiority 

and Limitations of DNA Evidence Compared to Other Types of Forensic Evidence?, 

14 Psychol. Pub. Pol'y & L. 27 (2008). Researchers found, "Public jurors, on 

average, rated DNA evidence as 95% accurate, and it was rated as 94% persuasive 

of a suspect's guilt." Id. at 52-53. Researchers also found DNA evidence was viewed 

by the public as more accurate than other evidence, including eyewitness testimony 

and suspect confessions. Id. at 37. The article warned, "The strong and largely 

invariant impact of DNA evidence across experimental conditions suggests that this 

type of scientific evidence may be so persuasive that its mere introduction in a 

criminal case is sufficient to seriously impede defense challenges." Id. at 58; see 

also State v. Pappas, 776 A.2d 1091, 1113 (Conn. 2001) (noting the concern "jurors 

will overvalue DNA evidence and ignore other types of evidence" (citing National 

Research Council, THE EVALUATION OF FORENSIC DNA EVIDENCE 196-97 (1996); 

Jason Schklar & Shari Seidman Diamond, Juror Reactions to DNA Evidence: Errors 

and Expectancies, 23 Law & Hum. Behav. 159 (1999)); Commonwealth v. Curnin, 

565 N.E.2d 440, 441 (Mass. 1991) (stating DNA evidence has "an aura of 

infallibility"); Erin Murphy, The New Forensics: Criminal Justice, False Certainty, 

and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 769 (2007) 

(discussing the "air of 'mystic infallibility'" surrounding DNA evidence in a 

courtroom); Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth 

and Justice in Reality and Fiction, 115 Yale L.J. 1050, 1068-73 (2006) 

(hypothesizing juror overbelief in scientific evidence by affording more probative 

value than deserved). 
 

expert's testimony, there was no confusion over what it meant, and there was no 

danger the jury would be misled. Similarly, in State v. Ramsey, 345 S.C. 607, 550 

S.E.2d 294 (2001), the DNA expert testified his testing showed the victim's blood 

on the defendant's boot, and "the chance the DNA on the boot did not come from 

[the victim] was one in 4,601—a percentage greater than 99.9." 345 S.C. at 611, 

550 S.E.2d at 296. As in Council, if the jury believed the expert, the defendant's 

guilt followed logically from the expert's testimony. 

In this case, however, Gallman's testimony—unlike the straightforward DNA 

evidence from hair or bodily fluids in Council or Ramsey—involved three 

fundamental concepts that are not at all straightforward: "touch DNA," "nonexclusion DNA," and "random match probability." Though these DNA concepts 

carry with them the same aura of reliability or invincibility, as we will explain, each 

of them has significant potential to confuse and mislead that was not a factor in the 

DNA evidence we addressed in Council or Ramsey. 

"Touch DNA" developed from advances in DNA technology that now permit 

analysts to obtain fragments of DNA profiles from skin or other cells collected from 

surfaces at crime scenes. One very important thing to understand about touch DNA 

is that in many cases—this case included—the DNA analyst is not able to obtain a 

full DNA profile from the "touch" sample. When the profile identifiable from the 

sample is only a fragment of a full DNA profile, the case becomes less like Council 

or Ramsey, and the analyst will be less able to identify the perpetrator or exclude any 

given suspect. See Commonwealth v. Clark, 34 N.E.3d 1, 13 n.13 (Mass. 2015) 

(stating "'touch DNA' or 'trace DNA'" emerged in 1997 after scientists "reported that 

DNA profiles could be generated from touched objects," which "opened up 

possibilities and led to the collection of DNA from a wider range of exhibits") 

(quoting Roland AH van Oorschot, et al., Forensic Trace DNA: A Review, in 1:14 

INVESTIGATIVE GENETICS 1, 2 (2010)); Bean v. State, 373 P.3d 372, 377 (Wyo. 2016) 

(describing touch DNA in general terms). 

Courts and legal commentators have recognized problems with the admission of 

touch DNA evidence in criminal trials. The Texas Court of Criminal Appeals 

recently wrote, "Touch DNA poses special problems because 'epithelial cells are 

ubiquitous on handled materials,' because 'there is an uncertain connection between 

the DNA profile identified from the epithelial cells and the person who deposited 

them,' and because 'touch DNA analysis cannot determine when an epithelial cell 

was deposited.'" Hall v. State, 569 S.W.3d 646, 658 (Tex. Crim. App. 2019) 
(quoting Reed v. State, 541 S.W.3d 759, 777 (Tex. Crim. App. 2017)). Touch DNA 

is sometimes referred to as "trace DNA." One commentator recently wrote, "These 

trace samples lack the clarity of the more straightforward DNA evidence that can 

lead to a clear match to a specific individual." Bess Stiffelman, No Longer the Gold 

Standard: Probabilistic Genotyping Is Changing the Nature of DNA Evidence in 

Criminal Trials, 24 Berkeley J. Crim. L. 110, 115 (2019); see also Dist. Attorney's 

Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 82, 129 S. Ct. 2308, 2327, 

174 L. Ed. 2d 38, 60 (2009) (Alito, J., concurring) (stating as to touch DNA that 

"modern DNA testing technology is so powerful that it actually increases the risks 

associated with mishandling evidence"). 

Gallman's testimony also included "non-exclusion" DNA evidence. Gallman stated, 

I take this person's DNA profile and I compare it to the 

information that was taken from the evidence. I check to 

see if their information is within this mixture and if their 

information is within this mixture, that means that I cannot 

exclude it, exclude them. 

As with touch DNA, courts have identified problems with non-exclusion DNA. As 

the Kentucky Supreme Court recently stated, 

[S]everal courts have held that DNA "match" or "nonexclusion" evidence is inadmissible without reliable 

accompanying evidence as to the likelihood that the test 

could or could not exclude other individuals in a given 

population. Without the accompanying evidence, these 

courts note "the jury have no way to evaluate the meaning 

of the result." 

Duncan v. Commonwealth, 322 S.W.3d 81, 92 (Ky. 2010) (quoting Commonwealth 

v. Mattei, 920 N.E.2d 845, 856 (Mass. 2010) (collecting cases)). 

Gallman also testified to the related concept "random match probability." Of the 

DNA concepts we have just discussed, random match probability has perhaps the 

most potential for confusion. See State v. Bloom, 516 N.W.2d 159, 162 (Minn. 1994) 

(recognizing that the "admission of the random match probability figure will confuse 

jurors"). Random match probability is the likelihood that another randomly chosen 
 

person—unrelated to the suspect—will have a DNA fragment identical to the 

fragment the analyst found in the touch sample. The probability of a random match 

in any given case depends on the size of the fragment the analyst can obtain from 

the touch sample. Thus, the more complete the fragment, the less likely another 

person could randomly match it. The smaller the fragment, on the other hand, the 

more likely some other person will also have the identical fragment, and would then 

be a "random match." 

The Kentucky Supreme Court addressed random match probability in Duncan, 

stating, "For smaller profiles, . . . those based on partial matches, . . . the odds of a 

random match can be much higher and the inference that the source of the known 

sample was also the source of the unknown sample much weaker." 322 S.W.3d at 

90; see Bloom, 516 N.W.2d at 162 (describing the difficult chain of inferences a 

juror must follow to get from the probability of a random match to an accurate 

understanding of the likelihood of guilt (citing Jonathan J. Koehler, Error and 

Exaggeration in the Presentation of DNA Evidence at Trial, 34 Jurimetrics J. 21, 35 

(1993))).5

 The Supreme Court of the United States addressed how random match 

probability creates risk that jurors will confuse it with a statistical probability of 

guilt, referring to the risk as the "prosecutor's fallacy." McDaniel v. Brown, 558 U.S. 

120, 128, 130 S. Ct. 665, 670, 175 L. Ed. 2d 582, 588 (2010) (citation omitted); see 

also Ming W. Chin et al., FORENSIC DNA EVIDENCE: SCIENCE AND THE LAW § 5:2 

5 See also 7 Clifford S. Fishman & Anne T. McKenna, JONES ON EVIDENCE § 60:27 

(7th ed. 2019) (cautioning "Care should be exercised as to how the statistic 

probabilities are expressed in the courtroom," and stating "it is easy and 

unfortunately only too frequent for both the prosecution and the defense to make 

errors in presenting the information to the court"); Lieberman supra, at 32 

(explaining that when a DNA expert "provides statistics on the frequency of the 

matching profile . . . [,] [t]he complexity of mathematical computations used to 

determine the probability of a match may leave jurors with some degree of confusion 

and uncertainty"); Kimberly Cogdell Boies, Misuse of DNA Evidence Is Not Always 

A "Harmless Error": DNA Evidence, Prosecutorial Misconduct, and Wrongful 

Conviction, 17 Tex. Wesleyan L. Rev. 403, 417 (2011) ("The formulas used to 

determine statistical probability of a match produce a result that is difficult for a 

layperson to understand."). 
 

 

 

(2019) (stating "the prosecutor's fallacy . . . confuses random match probability with 

a source (or guilt) probability statement").6 

Thus, even when the concepts of touch DNA, non-exclusion DNA, and random 

match probability are completely and accurately presented to a jury, there is 

significant potential the testimony will be confusing and misleading. 

III. Analysis of Error 

We have repeatedly discussed the trial court's "gatekeeping" role regarding the 

admission of expert testimony. In Council, for example, we framed our discussion 

around the trial court's responsibility to ensure the expert testimony meets the 

requirements of Rules 702 and 403. We emphasized "the trial judge must find" the 

Rule 702 elements are satisfied. 335 S.C. at 20, 515 S.E.2d at 518. We held, "The 

trial judge should . . . determine reliability," and "the trial judge should determine if 

its probative value is [substantially] outweighed by" the dangers listed in Rule 403. 

Id. We have repeatedly enforced the requirement that trial courts exercise their 

gatekeeping responsibility in admitting expert testimony. See, e.g., Graves v. CAS 

Med. Sys., Inc., 401 S.C. 63, 75, 735 S.E.2d 650, 656 (2012) (affirming the trial 

court's exclusion of the plaintiff's experts' opinions and stating "the court must . . . 

exercise its role as gatekeeper"); Watson v. Ford Motor Co., 389 S.C. 434, 445, 699 

S.E.2d 169, 174 (2010) (reversing the trial court's failure to exercise its role as 

gatekeeper and stating "the trial court serves as the gatekeeper and must decide 

whether the evidence submitted by a party is admissible pursuant to the Rules of 

Evidence as a matter of law"). 

The proponent of scientific evidence has a corresponding responsibility to provide 

the trial court the factual and scientific information the court needs to carry out its 

gatekeeping duty. In Council, Graves, and Watson, the proponent went to great 

lengths in a hearing outside of the jury's presence to provide a sufficient factual and 

6

 This writer has been an Associate Justice on the Supreme Court of California since 

1996. Justice Chin—"[a] nationally renowned expert on DNA evidence"—is set to 

retire later this year. Merrill Balassone, Justice Ming Chin to Retire from California 

Supreme Court, CAL. CTS. NEWSROOM (Jan. 15, 2020), 

https://newsroom.courts.ca.gov/news/justice-ming-chin-to-retire-from-californiasupreme-court. 
 

scientific basis for the court to consider as gatekeeper. In Council, the State 

presented live, detailed testimony from the FBI expert explaining the history of the 

mitochondrial DNA analysis method, his training in the method, and precisely how 

the method is used. 335 S.C. at 17-18, 515 S.E.2d at 516-17. Similarly, in Graves 

and Watson, the civil plaintiffs who sought to introduce the opinion testimony 

presented deposition testimony of their experts and/or live testimony outside the 

presence of a jury,7

 and each expert explained in detail the factual and scientific basis 

for their opinions. Graves, 401 S.C. at 70-72, 735 S.E.2d at 653-54; Watson, 389 

S.C. at 447-48, 699 S.E.2d at 176. 

In this case, the State did basically nothing to give the trial court a sufficient factual 

and scientific basis upon which to carry out its gatekeeping responsibility. First, the 

State did not call Gallman—or any witness with any knowledge of Gallman's 

testimony or its factual or scientific basis—to testify at the hearing on Phillips' 

motion to exclude her testimony. Under that circumstance alone, it was impossible 

for the trial court to meaningfully determine whether Gallman's testimony satisfied 

the Rule 702 elements, or should be excluded under Rule 403. 

Second, the State made almost no effort to educate the trial court on the factual and 

scientific basis of Gallman's opinions. Before any expert opinion may be admitted 

into evidence, the proponent of the opinion must convince the trial court that each 

element of the Rule 702 foundation has been established. See State v. Von Dohlen, 

322 S.C. 234, 248, 471 S.E.2d 689, 697 (1996) ("The party offering the expert has 

the burden of showing his witness possesses the necessary learning, skill, or practical 

experience to enable the witness to give opinion testimony."), overruled on other 

grounds by State v. Burdette, 427 S.C. 490, 832 S.E.2d 575 (2019); see also United 

States v. Williams, 865 F.3d 1328, 1338 (11th Cir. 2017) (stating "the proponent of 

expert testimony bears the burden of demonstrating the expert's qualifications and 

competence to give his proposed testimony"). In addition, when the opponent makes 

a Rule 403 objection, the proponent must demonstrate the probative value of the 

evidence. In the pre-trial hearing in this case, the only person who spoke on behalf 

of the State was the assistant solicitor. She spoke only briefly, and to the extent she 

said anything about the concepts of touch DNA, non-exclusion DNA, or random 

7

 In Graves, the testimony was presented in a pre-trial Daubert/Council hearing. See 

401 S.C. at 73, 735 S.E.2d at 655 (describing the trial court's analysis of the expert's 

depositions before excluding the expert opinion and granting summary judgment). 
match probability, the statements she made were mostly wrong. We will address her 

incorrect statements below. 

Gallman did address each concept in her testimony before the jury, but the assistant 

solicitor never asked Gallman any questions that allowed her to explain the concepts 

in detail. As to touch DNA, Gallman described it generally as follows, 

But when you talk about touch DNA, it's based on whether 

-- like I say, touch DNA, whether I touch an item or I 

didn't. You can touch an item and still you will not get a 

full DNA profile from that touch. So touch DNA is 

basically like a luck of the draw, whether you leave your 

cells or you didn't or you left a couple of cells, but it wasn't 

enough information to detect that you were there. 

Shortly after this testimony, the assistant solicitor asked Gallman if she obtained a 

full DNA profile for the standards, asking, "Were you able to develop a full profile 

and get all sixteen numbers for the defendant, Billy Phillips?" Gallman answered, 

"Yes." Immediately thereafter, however, "Turning your attention to the items of 

evidence that you tested," as she directed Gallman, the assistant solicitor did not ask 

Gallman whether she got a full DNA profile from the touch samples. Gallman then 

proceeded to make three statements that incorrectly indicated she did get a full DNA 

profile from the gun. She testified with respect to the gun, "With this particular 

sample, when I developed the DNA profile of the DNA obtained from it," and "it's 

basically a genetic footprint or fingerprint of who had potentially touched the gun," 

and "I was developing a DNA profile from whatever skin cells were left there." At 

no other point did the assistant solicitor ask Gallman to give any explanation of the 

nature of touch DNA, particularly the significant fact that the touch DNA samples 

in this case revealed only fragments, not full DNA profiles. 

In subsequent testimony, Gallman hardly explained that the touch DNA samples 

revealed only a fragment of a full DNA profile. Gallman referred to the samples not 

as fragments, but as "the swab from the gun" and "the swab from the right front 

pocket." Finally, she testified, 

[W]e're able to develop a DNA profile from evidence and 

then also develop a DNA profile from a standard. It could 

be from a person's blood or what we call a buccal swab, 
when they swab inside someone's, within your mouth, and 

compare that to the evidence to see whether it matches or 

it does not match. 

The striking omission of a meaningful explanation that the touch samples Gallman 

obtained in this case revealed only fragments of a full DNA profile left the jury with 

the incorrect impression Gallman matched Phillips' DNA standard with a full DNA 

profile he left behind on the gun and in the pocket. 

In similar fashion, the State elicited from Gallman only general descriptions of nonexclusion DNA and random match probability. Of the concerns recited by the courts 

and academic authorities discussed above, the State addressed none of them. We 

are particularly troubled by the State's failure to elicit from Gallman any explanation 

of the method she used to calculate the probability that some other person—not 

Phillips—contributed the DNA on the gun or in the jeans pocket. As Gallman 

testified, she is "required to tell you how often you would see this mixture in a 

population." There must, however, be some method she followed in arriving at this 

probability. She explained no method, stating only, "So based on the information 

that I could use to generate a statistic, the value is one in two hundred." As to the 

jeans pocket, she stated only, "I compared the DNA [standards] to the evidence . . . 

and the next step is to give a statistical value to that mixture, and the probability of 

randomly selecting an unrelated individual who could have contributed to this 

mixture is approximately one in two." 

The method of making these calculations is undoubtedly complicated. As some of 

the academic writers referred to above stated, "The formulas used to determine 

statistical probability of a match produce a result that is difficult for a layperson to 

understand," Boies, supra, at 417, and, "The complexity of mathematical 

computations used to determine the probability of a match may leave jurors with 

some degree of confusion and uncertainty," Lieberman, supra, at 32. The difficulty 

of making or explaining the calculation does not mean, however, the method for 

doing so may be ignored. Rather, the method by which a DNA analyst calculates 

random match probability must be explained. "To say that two patterns match, 

without providing any scientifically valid estimate . . . of the frequency with which 

such matches might occur by chance, is meaningless." National Research Council, 

supra note 2, at 9 (emphasis added). 
 

In addition, much of the information the State did provide the trial court and jury 

was simply wrong. We begin with the assistant solicitor's presentation to the trial 

court in the pre-trial hearing. Following up on her answer to the court's question in 

which she stated three people—including Phillips—could not be excluded from the 

mixture of DNA found on the gun, the assistant solicitor said, "That means their 

DNA is there, and if [defense counsel] had spoken to Ms. Gallman, . . . she would 

have been able to explain that to him." The court then asked her, "Well, are you 

saying that Billy Phillips' DNA is on the weapon," to which she responded, "It is." 

The assistant solicitor's statements are wrong. She appeared to recognize her error 

moments later when she stated, "Your Honor, I mis-spoke." She then proceeded, 

however, to make another series of incorrect statements. She said, "It does not say 

that it is 100% Billy Phillips' DNA in that mixture of contributors, but it says that he 

cannot be excluded as a contributor to the three. It also lists two other names. 

'Cannot be excluded' means the same thing as can be included." She then stated, 

"The DNA itself, it stands for itself." 

Actually, if defense counsel had talked to Gallman, Gallman would certainly have 

told him she did not know whether Phillips' DNA was on the gun, or in the jeans 

pocket. She would also have told him "cannot be excluded" most certainly does not 

mean "can be included,"8

 and she would have taken pains to be clear the DNA does 

not "stand for itself." Rather, DNA—particularly touch DNA—is a complicated 

scientific field of study that requires detailed explanation given by a trained scientist 

like Gallman, elicited by an experienced trial lawyer who has taken the time to 

prepare herself for trial. 

In Gallman's testimony, there were more incorrect statements. Responding to 

confusing questions from the assistant solicitor, Gallman conflated (1) a finding that 

an individual can be excluded as a contributor to a DNA mixture with a finding that 

8

 The State's casual use of scientific terms is striking. When Gallman testified she 

could not exclude Phillips as a contributor, she meant that whatever fragment of a 

DNA profile she found on the evidence matched a fragment of Phillips' full DNA 

profile. The corollary to her "cannot be excluded" testimony as to Phillips is that a 

DNA fragment identical to Phillips' fragment is included. That is not the same as 

saying Phillips' full DNA profile is included. In fact, Gallman does not know whose 

DNA is in the mixture; she knows only that she found a DNA fragment that could 

have been left by quite a few people. 
 

 

 

the excluded individual never touched the item, and (2) a finding that a fragment of 

a person's DNA is on an item with a finding the person touched the item. 

SOLICITOR: Okay. So, using again, I guess an example 

of, say, these scissors. If I had never touched the scissors 

and did not leave any cells on it, would the language be, 

could not be excluded, or would it be outright excluded? 

GALLMAN: It would be excluded. 

SOLICITOR: Okay. So, if multiple people have handled 

the scissors, and you're able to get numbers, DNA numbers 

off of the scissors and you find that there's at least three, 

that just means that I have left part of my DNA on there. 

Correct? 

GALLMAN: It means that you left cells, skin cells on that 

item. 

We do not fully understand the assistant solicitor's questions, so Gallman probably 

did not understand them either. The answers, however, are wrong. As to the first 

answer, if the assistant solicitor never touched the scissors, but another person who 

did touch them left a DNA fragment behind that is identical to a fragment in the 

assistant solicitor's DNA profile, Gallman could not have excluded the assistant 

solicitor because Gallman would not know which of the two left the fragment. The 

incorrect answer suggests that if Phillips had not touched the gun or had his hand in 

the jeans pocket, he would have been excluded. To the contrary, it is entirely 

possible that Phillips did not put his hand in Woods' pocket, but someone with an 

identical DNA fragment did, and still Gallman could not exclude Phillips as a 

contributor. As to the jeans pocket, the assistant solicitor's confusing question and 

Gallman's incorrect answer wrongly suggest we know Phillips had his hand in 

Woods' pocket. We do not know that. 

As to the second answer, if multiple people touched the scissors, and one of them 

left behind a DNA fragment identical to a fragment in the assistant solicitor's DNA 

profile, that does not mean the assistant solicitor left cells there. This is in fact the 

concept of random match probability the State failed to explain. There is always 

some chance another person left those cells, but the person has an identical DNA 
fragment. So, only one of the two touched the item, but neither can be excluded. 

The answer suggests—wrongly—Gallman was giving her opinion that Phillips had 

his hand in the pocket. She was not. 

Also as to the second answer, there are other plausible ways a fragment of a person's 

DNA might be found on the scissors when the person did not themselves touch them. 

"Touch DNA is . . . subject to what is known as secondary transfer. This refers to 

the 'possibility that an individual or an object may serve as a conduit between a 

source and a final destination without any direct encounter.'" Bean, 373 P.3d at 377-

78 (quoting 4 David L. Faigman et al., MODERN SCIENTIFIC EVIDENCE: THE LAW 

AND SCIENCE OF EXPERT TESTIMONY § 30:13 (2015–2016 ed.)); see also 7 Clifford 

S. Fishman & Anne T. McKenna, JONES ON EVIDENCE § 60:10 (7th ed. 2019) 

(explaining "'Secondary transfer' occurs when DNA left on one surface is 

inadvertently transferred to another surface" and noting "the risk is greatest with 

regard to touch DNA"). In other words, it is quite possible the assistant solicitor 

never touched the scissors, but cells she left on another surface were transferred there 

and tested as part of the touch DNA sample. In that event—contrary to Gallman's 

second answer—the assistant solicitor's DNA was on the scissors, but she had not 

left DNA there. 

We review a trial court's decision to admit or exclude evidence under a deferential 

standard for an abuse of discretion. State v. Dickerson, 395 S.C. 101, 116, 716 

S.E.2d 895, 903 (2011). In this case, however, the State did not give the trial court 

the factual and scientific basis the court needed to meaningfully exercise that 

discretion. The trial court was essentially left in the dark as to the difficult concepts 

of touch DNA, non-exclusion DNA, and random match probability. As to the 

misstatements made by the assistant solicitor and Gallman, the trial court was kept 

out of the position of even suspecting the statements might be incorrect. 

We are aware that our "analysis of error" reads as if we are second-guessing the trial 

court. However, because the trial court did not require the State to present the factual 

and scientific foundation for Gallman's testimony in a Daubert/Council hearing 

before she testified to the jury, we are actually conducting the analysis for the first 

time. The trial court should have required the State to present the factual and 

scientific information necessary to establish the foundation required by Rule 702. 

The trial court also should have conducted an on-the-record balancing of probative 

value and the danger of confusion of the issues and misleading the jury required by 
 

Rule 403. In that event, instead of conducting our own analysis, we could review 

the trial court's analysis under the proper standard of deference. 

The root of the trial court's error, however, is a series of failures by the State. First, 

the State failed to present the testimony of its expert witness at the hearing at which 

the trial court was to consider the admissibility of the expert's opinion. Second, the 

State presented an incomplete factual and scientific basis for the admission of the 

expert's opinion. Third, the State did not explain to the jury the complicated DNA 

concepts involved in this case. Fourth, the State presented incorrect information 

about its DNA evidence. Finally—as we will explain—the assistant solicitor 

misstated to the trial court and the jury that Phillips' DNA was on the gun and in the 

jeans pocket. 

IV. Harmless Error 

The State argues that even if the trial court erred in admitting Gallman's DNA 

testimony, the error was harmless. We disagree. While the State presented 

considerable circumstantial evidence supporting Phillips' guilt, it did not offer any 

evidence that conclusively proved Phillips' guilt. See State v. Pagan, 369 S.C. 201, 

212, 631 S.E.2d 262, 267 (2006) (stating "an insubstantial error not affecting the 

result of the trial is harmless where 'guilt has been conclusively proven . . . such that 

no other rational conclusion can be reached.'" (quoting State v. Bailey, 298 S.C. 1, 

5, 377 S.E.2d 581, 584 (1989))). 

As part of our harmless error analysis, we review "the materiality and prejudicial 

character of the error" in the context of the entire trial. State v. Byers, 392 S.C. 438, 

447-48, 710 S.E.2d 55, 60 (2011). To evaluate this context, we must consider the 

assistant solicitor's misstatements. In addition to those already discussed, she told 

the trial court in response to Phillips' directed verdict motion, "I believe with his 

DNA being on the murder weapon, along with other things, along with the 

eyewitness testimony, there is absolutely substantial evidence." The trial court then 

asked, "Is his DNA actually on there?" She responded, "His DNA is on the gun in 

the form that he cannot be excluded." Both statements are wrong. 

More importantly, however, the assistant solicitor made misstatements in her closing 

argument to the jury. On several occasions she repeated the false statement that if a 

person does not touch an item he will be excluded. She stated, for example, "If you 

don't touch it, you are automatically excluded. One hundred percent excluded." She 
also told the jury Gallman found Phillips' DNA on the gun and in the jeans pocket. 

She stated, "Well, we have his DNA on that gun," and "We also know that 

defendant's DNA is on the murder weapon and inside [Woods'] pocket," and "Had 

he not touched the gun or the pocket, his DNA would not be there." 

The "prosecutor's fallacy" the Supreme Court and Justice Chin warn about involves 

risk the jury might unknowingly or accidentally confuse the complicated concepts 

underlying DNA evidence. Such innocent confusion was certainly a risk in this case. 

We need not determine whether the risk of innocent confusion materialized in this 

case, however, because the incorrect statements in closing argument all but 

guaranteed the jury was confused and misled. If there were any possibility we might 

find the error of admitting the evidence harmless, the assistant solicitor extinguished 

that possibility with her incorrect statements in her closing argument. See Duncan, 

322 S.W.3d at 91-93 (finding it was improper for prosecutor to state in closing 

argument that "not excluded" was the same as "included," and holding "given the 

immense weight jurors are apt to accord DNA evidence," the prosecutor's statements 

"rendered [the defendant's] trial manifestly unfair"); Whack, 73 A.3d at 189 (finding 

trial court erred in denying mistrial because prosecutor in closing argument "told 

jurors that [defendant's] DNA was present" when expert actually testified "she could 

not exclude [defendant] as being the source of DNA"); Bloom, 516 N.W.2d at 169 

(stating "we will not hesitate to award a new trial . . . if . . . DNA identification 

evidence was presented in a misleading or improper way"). 

V. Conclusion 

DNA evidence is a complicated scientific subject. In Council, we held "the trial 

judge was well within his discretion in finding the results of the [mitochondrial] 

DNA analysis admissible." 335 S.C. at 21, 515 S.E.2d at 518. That does not mean 

that every time a party offers DNA evidence it is admissible. Rather, if an objection 

is made, the trial court must hold a Daubert/Council hearing, the proponent of the 

evidence must present the factual and scientific basis necessary to satisfy the 

foundational elements of Rule 702, and the trial court must conduct an on-the-record 

balancing of probative value against the applicable Rule 403 dangers. The trial court 

should make specific findings as to each contested element or issue. 

By not conducting a Daubert/Council hearing, the trial court left itself without a 

meaningful opportunity to exercise its discretion. The State failed to establish the 

"assist the trier of fact" element, and the probative value of the DNA evidence is 
 

substantially outweighed by danger the evidence would confuse the issues and 

mislead the jury. We reverse Phillips' convictions and remand for a new trial. 

REVERSED. 

KITTREDGE and JAMES, JJ., concur. BEATTY, C.J., concurring 

in result only in a separate opinion in which HEARN, J., concurs. 
 

 

CHIEF JUSTICE BEATTY: Respectfully, I concur in result. While I agree 

with the conclusion reached by the majority, I disagree with the majority's reference 

to a "Daubert/Council" hearing. Because this Court has expressly declined to adopt 

Daubert,

9

 I believe the majority's instruction regarding a "Daubert/Council" hearing 

is confusing and constitutes an implicit adoption of Daubert. 

As the majority correctly recognizes, in State v. Council, 335 S.C. 1, 515 

S.E.2d 508 (1999), this Court was presented with an opportunity to analyze the 

admissibility of expert opinion on DNA evidence under the new South Carolina 

Rules of Evidence. In Council, this Court identified the procedure trial judges 

should use in deciding whether to admit scientific evidence. Specifically, the Court 

stated: 

While this Court does not adopt Daubert, we find the proper 

analysis for determining admissibility of scientific evidence is now 

under the SCRE. When admitting scientific evidence under Rule 702, 

SCRE, the trial judge must find the evidence will assist the trier of fact, 

the expert witness is qualified, and the underlying science is reliable. 

The trial judge should apply the Jones[

10] factors to determine 

reliability. Further, if the evidence is admissible under Rule 702, 

SCRE, the trial judge should determine if its probative value is 

outweighed by its prejudicial effect. Rule 403, SCRE. Once the 

evidence is admitted under these standards, the jury may give it such 

weight as it deems appropriate. 

Id. at 20–21, 515 S.E.2d at 518 (emphasis added). 

 Since 1999, Council has remained the standard by which trial judges have 

decided whether to admit scientific evidence. Although our appellate courts have 

referenced Daubert in at least ten cases since 1999, our courts have consistently 

adhered to Council and repeatedly declined to adopt Daubert. See, e.g., State v. 

Jones, 383 S.C. 535, 548 n.5, 681 S.E.2d 580, 587 n.5 (2009) (citing Council and 

reiterating that the Court declined to adopt Daubert); State v. Warner, No. 5717, 

9 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (adopting new standard 

for determining the admissibility of scientific evidence under Rule 702 of the Federal 

Rules of Evidence). 

10 State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979). 
2020 WL 1696716, at * 3 (Ct. App. Apr. 8, 2020) ("South Carolina has not adopted 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95, 113 S. Ct. 

2786, 125 L. Ed. 2d 469 (1993), by name, nor has it revised Rule 702, SCRE, to 

incorporate the Daubert framework. Nevertheless, our approach is 'extraordinarily 

similar' to the federal test." (citation omitted)). 

Without explanation, the majority departs from more than twenty years of 

precedent and appears to implicitly adopt Daubert by creating a hybrid 

Daubert/Council test. I believe this departure is unwarranted and will create 

confusion. Although our appellate courts have recognized the similarities between 

Daubert and Council, there is a distinction that caused this Court to decline to adopt 

the Daubert test. The majority has neither addressed this distinction nor outlined the 

procedure in the new test. 

As the majority aptly points out, trial judges are the gatekeepers regarding the 

admission of scientific evidence and expert testimony. In order to fulfill this 

significant role, our judges must have a clear understanding of the correct test for 

admissibility. I believe Council remains the correct test. 

Having addressed my substantive concerns with the majority's opinion, I now 

turn to an observation that is equally concerning. As part of its analysis, the majority 

castigates the prosecutor in this case. To some extent, this rebuke is warranted. The 

prosecutor was at times evasive, if not misleading, when responding to some of the 

trial judge's questions and arguing before the jury. Yet, it is questionable whether 

this was intentional. Further, the prosecutor does not bear sole responsibility of 

ensuring that only admissible evidence is put before the judge and jury. Rather, the 

primary responsibility lies with the judge, who is the gatekeeper regarding the 

admission of all evidence. 

Based on the foregoing, I concur in the majority's decision to reverse Phillips's 

convictions and remand for a new trial. On remand, if an objection is raised 

regarding the DNA evidence, I believe the trial judge must hold a hearing in 

accordance with Council. 

HEARN, J., concurs.