THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Billy Phillips, Petitioner.

Appellate Case No. 2018-000977

ON WRI T 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 Defe nder Wanda H. Carter, of Columbia, for Petitioner.

Attorney General Alan Mc Crory 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 anal yst 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 select ed 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 e xplain to the trial court or the jury three fundamental concepts underlying the DNA testimony the analyst gave in this particular case. Finally—in several inst ances—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 reve rse 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 th e 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 te stified 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 pur chase marijuana from Woods. She and Freeman called Woods' cell phone again and c ould 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 a nd 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 marijuan a 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 jeanspockets were pulled out. Fr eeman testified he panicked. He picked up the gun,

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

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

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

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

within an hour or so before Freeman f ound 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 brot her—testified he sa w 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 pi ck 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 purchas e 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 circumstan ces—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 th e murder, a RidgelandPolice Department officer approached Phillips on the street and asked hi m to come to the police department to speak with officers about Woods' murder. Two South Carolina Law Enforcement Division (SLED) agents inte rviewed 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 smoke d marijuana and drank alcohol. Phillips explained he held and poin ted Woods' gun to imitate law enforcement officers. Phillips claimed Woods was al ive when Phillips left be tween 9:30 and 10:00 p.m., and he denied being present at the time W oods 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 in terview 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 wa s sitting in Woods' car when three men approached Woods' house. One of the me n entered the house while the other two men remained on the porch. Phillips heard gunshots, and as the three men wereleaving, they made eye contact with Ph illips. 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 h ouse. The route there required him to pass the BP station. Phillips told the agent he gave a diffe rent story during his first

interview because he was afraid somethi ng 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 object ed to the admissibility of Gallman's DNA testimony. The trial court conducted a h earing on the motion before trial, but did not take testimony. The court ruled Ga llman'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 ch arge. The court of appeals affirmed. State v. Phillips , Op. No. 2018-UP-081 (S.C. Ct. A pp. 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 opini on 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 mu rder and sexual assau lt and (2) exonerated the person the defendant blamed for the cr imes. 335 S.C. at 17, 515 S.E.2d at 516.

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

1 "Touch DNA" is one of the three fundame ntal concepts we mentioned in the introduction to this opinion. As we will explain in deta il 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 evid ence. Concluding that the expert's method—mitochondrial DNA analysis of pubic hair found at the cr ime 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 he ld, "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 cour t 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 th e other person "could not ha ve 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 "assi st the trier of fact." Presumably for the same reasons, the defendant did not challenge the proba tive 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 samp le was one in two. Phillips argues these probabilities substantially undermine the probative value of Gallman's testimony, which in turn raises the question of whet her Gallman's testimony satisfied the "assist the trier of fact" element. Phillips al so 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 th irteen 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 c ould not be reliably tested. Of the eleven remaining touch DNA samples, Gallman co mpared each one to the standards from the seven people who submitted DNA for tes ting. She concluded Phillips' DNA was not present in nine of the samples. In the words Gallman used to describe thisconclusion to the jury, she "excluded" Ph illips 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 ea ch contained a mixture of DNA from at least three people. She testified Woods and Phillips "ca nnot be excluded as contributors" to the mixtures in either sample. The other people who submitted st andards for testing— including Freeman—were excluded, except th at one of the officers could not be excluded as a contributor to the sample from the gun.

Gallman testified DNA expert s "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 le ft 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 e xplain how she calcula ted 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 c onsider 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 signif icant issue—as a practical matter—was

who murdered him. We must then cons ider 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) (s tating "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." Academ ic sources are more precise. See, e.g.

, National Research Council, DNA T ECHNOLOGY IN F ORENSIC S CIENCE 9 (1992) ("Interpreting a DNA typing analysis requires a vali d scientific method for estimating the probability that a random person by chance ma tches the forensic sample at the sites of DNA variation examined. To say that two patterns match, w ithout providing any scientifically valid estimate . . . of the frequency with which such matches might occur by chance, is meaningless.").evidence is obviously affected by the scarc ity 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 committe d 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 th eory of the case was that Phillips was mad at Woods for tricking him out of a Play Station, 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 c onvince the jury its th eory was correct, and thus prove the primary disputed fact: who murdered Woods. Contrary to the evidence Phillips handled Woods' gun, th ere 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, Gall man 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, ev en 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 popul ation. The probative value of Gallman's testimony connecting Phillips to the DN A 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 th ree are applicable here.

Most of our Rule 403 cases involve only unf air prejudice. Unfair prejudice is the tendency of the evidence to suggest a d ecision based on something other than the legitimate probative for ce 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 prej udice is a separate analysis from the danger of confusion of the issu es 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 cr imes and obtain convic tions. Nevertheless,

DNA evidence has also come to be known for its potential to confuse and mislead jurors. This potential has been widely disc ussed 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 su rrounding 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 ag ainst 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 Prosecutor s: Ethical and Evidentiary Issues , 76 Fordham L. Rev. 1453, 1469 (2007)). The Wright court also stated "the potential danger posed

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

obvious." Id. The Maryland Court of Appeals wr ote "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 mislea ds 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 confus ing 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—t he DNA evidence is straight forward and reliable, and its legitimate probative force is highly pers uasive—if not dispositive—of guilt. In
Council , for example, the DNA expert perfo rmed mitochondrial DNA analysis on pubic hair found at the crime scene. He testified the hair "m ost 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 Asso ciation published an article summarizing the results of three studies concerning the impact of DNA eviden ce 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% accurat e, 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 othe r evidence, including eyewitness testimony and suspect confessions. Id. at 37. The article warn ed, "The strong and largely invariant impact of DNA evid ence across experimental conditions suggests that this type of scientific evidence may be so pe rsuasive that its mere introduction in a

criminal case is sufficient to seri ously impede defe nse 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, T HE E VALUATION OF F ORENSIC DNA E VIDENCE 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 infa llibility'" surrounding DNA evidence in a courtroom); Tom R. Tyler, Viewing CSI and the Threshol d of Guilt: Managing Truth and Justice in Reality and Fiction , 115 Yale L.J. 1050, 1068-73 (2006) (hypothesizing juror overbelie f in scientific evidence by affording more probative value than deserved).expert's testimony, there was no confusi on 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 testifie d 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 te stimony—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 pr obability." 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 fro m advances in DNA te chnology that now permit analysts to obtain fragments of DNA profile s from skin or other cells collected from surfaces at crime scenes. One very impor tant 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 le ss 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 'tra ce DNA'" emerged in 1997 after scientists "reported that DNA profiles could be ge nerated from touched obj ects," 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

I NVESTIGATIVE G ENETICS 1, 2 (2010)); Bean v. State , 373 P.3d 372, 377 (Wyo. 2016) (describing touch DNA in general terms).

Courts and legal commentators have r ecognized 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 't here is an uncertain connection between the DNA profile identified from the epit helial 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 straightforw ard DNA evidence that can lead to a clear match to a speci fic individual." Bess Stiffelman, No Longer the Gold Standard: Probabilistic Genotyping Is Chang ing 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., conc urring) (stating as to touch DNA that "modern DNA testing technology is so powerfu l that it actually increases the risks associated with mishandling evidence").

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

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

information that was taken fro m the evidence. I check to

see if their information is with in 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 identifie d problems with non-e xclusion 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 th e related concept "random ma tch 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 ra ndom match probability figure will confuse jurors"). Random match probability is the likelihood that another randomly chosenperson—unrelated to the suspect—will ha ve a DNA fragment identical to the fragment the analyst found in the touch sa mple. 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 comple te the fragment, the less likely another person could randomly match it. The sma ller 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 addre ssed 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 probab ility of a random match to an accurate understanding of the likelihood of gu ilt (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., F ORENSIC DNA E VIDENCE : S CIENCE AND THE L AW § 5:2

5 See also 7 Clifford S. Fishman & Anne T. McKenna, J ONES ON E VIDENCE § 60:27 (7th ed. 2019) (cautioning "Care should be exercised as to how the statistic probabilities are expressed in the cour troom," and stating "it is easy and unfortunately only too frequent for both the prosecution and the defense to make errors in presenting the informa tion to the court"); Lieberman supra , at 32 (explaining that when a DNA expert "pr ovides statistics on the frequency of the matching profile . . . [,] [t]h e complexity of mathemati cal 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 Evid ence 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 ma tch produce a result that is difficult for a layperson to understand.").(2019) (stating "the prosecutor's fallacy . . . confuses random ma tch 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 accu rately presented to a jury, there is significant potential the testimony will be confusing and misleading.

III. Analysis of Error

We have repeatedly discu ssed the trial court's "gatek eeping" 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 tr ial 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] outwei ghed by" the dangers listed in Rule 403.

Id. We have repeatedly enforced the requi rement 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) (re versing the trial court's failure to exercise its role as gatekeeper and stating "the trial court se rves 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 ha s a corresponding responsibility to provide

the trial court the factual and scientific in formation 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 Justi ce on the Supreme Court of California since 1996. Justice Chin—"[a] nationally renow ned expert on DNA evidence"—is set to retire later this year . Merrill Balassone, Justice Ming Chin to Retire from California Supreme Court , C AL . C TS . N EWSROOM (Jan. 15, 2020), https://newsroom.courts.ca.gov/news/justi ce-ming-chin-to-retire-from-california

supreme-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 tr aining 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 e xperts and/or live testimony outside the presence of a jury, 7 and each expert explained in deta il 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 gatekeepi ng responsibility. First, the State did not call Gallman—or any witn ess with any knowledge of Gallman's testimony or its factual or scientific basi s—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 founda tion 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 witn ess possesses the necessary l earning, 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 demons trating 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 th is case, the only person who spoke on behalf

of the State was the assistant solicitor. Sh e 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 th e 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 te stimony before the jury, but the assistant

solicitor never asked Gallman a ny questions that allowed he r to explain the concepts in detail. As to touch DNA, Gallma n described it generally as follows,

But when you talk about touc h DNA, it's based on whether -- like I say, touch DNA, whet her I touch an item or I

didn't. You can touch an it em and still you will not get a full DNA profile from that touch. So touch DNA is basically like a luck of th e 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 defend ant, Billy Phillips?" Gallman answered, "Yes." Immediately thereaf ter, however, "Turning your attention to the items of evidence that you tested," as she directed Gallma n, the assistant solicitor did not ask Gallman whether she got a fu ll 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 re spect 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 fingerpri nt of who had potentially touched the gun," and "I was developing a DNA profile from what ever 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 si gnificant fact that the touch DNA samples in this case revealed only fragm ents, not full DNA profiles.

In subsequent testimony, Ga llman 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 D NA profile from evidence and then also develop a DNA profile from a standard. It could be from a person's blood or wh at we call a buccal swab,when they swab inside some one'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 expl anation 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 th e gun and in the pocket.

In similar fashion, the Stat e elicited from Gallman only ge neral descriptions of nonexclusion DNA and random match probability. Of the concerns recited by the courts

and academic authorities disc ussed above, the State addr essed none of them. We are particularly troubled by the State's fail ure to elicit from Ga llman 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 ho w 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, st ating 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 c ontributed 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 st ated, "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 comp lexity of mathematical computations used to determine the prob ability of a match may leave jurors with some degree of confusion a nd uncertainty," Lieberman, supra , at 32. The difficulty of making or explaining the calculati on does not mean, however, the method for doing so may be ignored. Rather, the method by whic h 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 me aningless." Nationa l 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 assi stant 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 assi stant solicitor said, "That means their DNA is there, and if [defense counsel] ha d spoken to Ms. Gallman, . . . she would have been able to explain that to him." The court then aske d her, "Well, are you saying that Billy Phillips' DNA is on the wea pon," to which she responded, "It is."

The assistant solicitor's statements are wr ong. She appeared to recognize her error moments later when she stated, "Your H onor, 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 mi xture of contributors, but it says that he

cannot be excluded as a contributor to the th ree. It also lists two other names. 'Cannot be excluded' means the same thing as can be included." She then stated, "The DNA itself, it st ands for itself."

Actually, if defense counsel had talked to Gallman, Gallman w ould 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 "c annot 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—pa rticularly touch DNA—is a complicated scientific field of study that requires deta iled 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 solic itor, Gallman conflated (1) a finding that

an individual can be excluded as a contri butor 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 matc hed 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 th at 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 fi nding the person touched the item.

SOLICITOR: Okay. So, usi ng again, I guess an example of, say, these scissors. If I had never touche d the scissors and did not leave any cells on it, would the language be, could not be excluded, or w ould 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 t ouched the scissors, bu t 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 woul d not know which of the two left the fragment. The incorrect answer suggests that if Phillips ha d not touched the gun or had his hand in the jeans pocket, he would have been ex cluded. 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 Ga llman could not exclude Phillips as a contributor. As to the je ans pocket, the assistant solicitor's confusing question and Gallman's incorrect answer wrongly s uggest 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 solicito r 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 cel ls, but the person has an identical DNAfragment. So, only one of th e two touched the item, but neither can be excluded. The answer suggests—wrongly—Gallman wa s 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 th e 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 w ithout any direct encounter.'" Bean

, 373 P.3d at 377

- 78 (quoting 4 David L. Faigman et al., M ODERN S CIENTIFIC E VIDENCE : T HE L AW

AND S CIENCE OF E XPERT T ESTIMONY § 30:13 (2015–2016 ed.)); see also 7 Clifford

S. Fishman & Anne T. McKenna, J ONES ON E VIDENCE § 60:10 (7th ed. 2019) (explaining "'Secondary transfer' occu rs when DNA left on one surface is inadvertently transferred to another surfac e" 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 le ft on another surface were transferred there and tested as part of the touch DNA sample . In that event—c ontrary 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 ad mit 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 wa s 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 solicit or and Gallman, the trial court was kept out of the position of even suspecting th e 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 fo r Gallman's testimony in a Daubert / Council hearing before she testified to the ju ry, we are actually conducti ng the analysis for the first

time. The trial court shoul d have required the State to present the factual and scientific information necessary to esta blish the foundation requi red by Rule 702.

The trial court also should have conducted an on-the-reco rd balancing of probative value and the danger of confusion of the issues and misleading the jury required byRule 403. In that event, instead of c onducting our own analysis, we could review the trial court's analysis under th e 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 consid er the admissibility of the e xpert'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 tria l court erred in admitting Gallman's DNA testimony, the error was ha rmless. We disagree. While the State presented considerable circumstantial evidence sup porting 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 ha s 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 materi ality 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 add ition to those already discussed, she told the trial court in response to Phillips' dir ected verdict motion, "I believe with his DNA being on the murder weapon, along with other things, along with the eyewitness testimony, there is absolutely s ubstantial 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 excl uded." Both statements are wrong.

More importantly, however, the assistant so licitor 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 st ated, for example, "If you don't touch it, you are automatically exclude d. One hundred per cent excluded." Shealso told the jury Gallman found Phillip s' DNA on the gun and in the jeans pocket. She stated, "Well, we ha ve 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 pock et, his DNA would not be there."

The "prosecutor's fallacy" the Supreme Cour t and Justice Chin warn about involves risk the jury might unknowingly or accident ally confuse the co mplicated concepts underlying DNA evidence. Such innocent confus ion 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 st atements 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 harm less, 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 ap t 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 beca use 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 ne w trial . . . if . . . DNA identification evidence was presented in a mi sleading 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 fi nding 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 basi s 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 a pplicable Rule 403 dangers. The trial court should make specific findings as to ea ch contested element or issue.

By not conducting a Daubert / Council hearing, the trial court left itself without a meaningful opportunity to exercise its disc retion. The State failed to establish the "assist the trier of fact" element, and the probative value of the DNA evidence issubstantially outweighed by danger the ev idence would confuse the issues and mislead the jury. We reverse Phillips' c onvictions and remand for a new trial.

REVERSED.

KITTREDGE and JAMES, JJ., concur . BEATTY, C.J., concurring in result only in a se parate 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 constitute s 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 DN A 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 sc ientific evidence. Specifically, the Court

stated:

While this Court does not adopt Daubert, we find the proper analysis for determining admissibil ity of scientific evidence is now

under the SCRE . When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the ev idence will assist the trier of fact, the expert witness is qua lified, and the underlying science is reliable. The trial judge should apply the Jones [ 10 ] factors to determine reliability. Further, if the evid ence is admissible under Rule 702, SCRE, the trial judge should dete rmine 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 sc ientific 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 scientif ic 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 de parts from more than twenty years of precedent and appears to implicitly adopt Daubert by creating a hybrid

Daubert/Council test. I believe this departur e is unwarranted and will create confusion. Although our a ppellate courts have recognized the similarities between

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

the Daubert test. The majority has neither addr essed 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 evid ence and expert testimony. In order to fulfill this significant role, our judges must have a cl ear understanding of the correct test for admissibility. I believe Council remains the correct test.

Having addressed my substantive concer ns with the majority's opinion, I now turn to an observation that is equally concerni ng. 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 evasiv e, if not misleading, when responding to some of the trial judge's questions and arguing before th e jury. Yet, it is questionable whether this was intentional. Further, the pros ecutor 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 th e trial judge must hold a hearing in

accordance with Council

.

HEARN, J., concurs.