In State v. Phillips, decided June 3, 2020, the SC Supreme Court reversed a murder conviction due to the prosecutor\u2019s misuse of DNA evidence. DNA evidence is powerful. When it is available\u00a0and when it is used appropriately,\u00a0it can be conclusive evidence of a person\u2019s guilt, or it can be conclusive evidence of a person\u2019s innocence. Even decades after a person has been convicted of a heinous crime, DNA evidence can conclusively exonerate a person. DNA evidence, and the air of infallibility that surrounds it, can be just as powerful when it is misused, and a prosecutor\u2019s misuse of DNA evidence can result in wrongful convictions\u2026 What did the prosecutor do in Phillips\u2019 trial, and how can you know when DNA evidence is being misused by the prosecution? HOW DO PROSECUTORS MISUSE DNA EVIDENCE? DNA evidence is admissible in SC courts, but only when the evidence is sufficiently reliable to comply with the SC Supreme Court\u2019s test announced in\u00a0State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). When is DNA evidence sufficiently reliable, and when should misuse of DNA evidence be excluded by trial courts? DNA Evidence is Not Automatically Admissible In\u00a0State v. Council, the SC Supreme Court held that mitochondrial DNA analysis of public hair found at a crime scene was sufficiently reliable to be admitted as evidence in a murder and sexual assault prosecution. However, the Supreme Court did not find that\u00a0all\u00a0DNA evidence is admissible in criminal prosecutions \u2013 they found that the scientific methodology used to analyze the\u00a0mitochondrial\u00a0DNA, in that case, was sufficiently reliable: \u201cWhen admitting scientific evidence under Rule 702,\u201d we held, \u201cthe trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.\u201d 335 S.C. at 20, 515 S.E.2d at 518. We also held that-\u201cif the evidence is admissible under Rule 702\u201d-the trial court must determine whether the probative value is substantially outweighed by the dangers listed in Rule 403. Id. If the underlying science of the proposed DNA evidence is not reliable, the testimony is not admissible. Also, if the proposed testimony is more prejudicial than probative, confusing, or likely to mislead the jury, it is not admissible under Rule 403. Misuse of DNA Evidence Confuses and Misleads Jurors Unlike the more straightforward analysis of mitochondrial DNA in State v. Council, the DNA evidence presented in Phillips was confusing and misleading because it relied on \u201cthree fundamental concepts that are not at all straightforward: \u2018touch DNA,\u2019 \u2018non-exclusion DNA,\u2019 and \u2018random match probability.'\u201d Touch DNA, or trace DNA, involves the analysis of a fragment of DNA which could \u201cmatch\u201d only a portion of any particular person\u2019s DNA profile \u2013 meaning the DNA could belong to the defendant, or it could belong to an uncertain number of other people whose DNA profile contains the same DNA fragment. Non-Exclusion DNAevidence\u00a0involves testimony that, when a defendant\u2019s DNA information is a part of a \u201cDNA mixture,\u201d the defendant cannot be excluded as a contributor. In many cases, this is misleading because \u201ccannot be excluded\u201d is not the same as \u201cincluded,\u201d and non-exclusion DNA evidence should be \u201cinadmissible without reliable accompanying evidence as to the likelihood that the test could or could not exclude other individuals in a given population.\u201d Random Match Probability\u00a0\u201cis 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.\u201d State supreme courts and the US Supreme Court have \u201caddressed how random match probability creates risk that jurors will confuse it with a statistical probability of guilt, referring to the risk as the \u2018prosecutor\u2019s fallacy.'\u201d 14TH\u00a0CIRCUIT SOLICITOR SLAMMED FOR MISUSE OF DNA EVIDENCE What did the SC Supreme Court say about the 14th\u00a0Circuit solicitor\u2019s misuse of DNA evidence? In a rare rebuke of a prosecutor who was either 1) intentionally misleading the court and jury or 2) incompetently misleading the court and jury, the Court said that: \t\u201cThe 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.\u201d \t\u201cIn several instances-the State presented information to the trial court and the jury that was simply wrong.\u201d \t\u201che State did basically nothing to give the trial court a sufficient factual and scientific basis upon which to carry out its gatekeeping responsibility,\u201d calling no witnesses with knowledge of the factual or scientific basis for the proposed testimony at the hearing on the motion to exclude. \t\u201che State made almost no effort to educate the trial court on the factual and scientific basis of Gallman\u2019s opinions.\u201d \t\u201cIn 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 match probability, the statements she made were mostly wrong.\u201d \t\u201che State elicited from Gallman only general descriptions of non-exclusion 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\u2019s 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.\u201d \tAddressing the assistant solicitor\u2019s statements to the trial court that Phillips\u2019 DNA was found on the weapon, the SC Supreme Court says: \u201cThe assistant solicitor\u2019s statements are wrong. She appeared to recognize her error moments later when she stated, \u201cYour Honor, I mis-spoke.\u201d She then proceeded, however, to make another series of incorrect statements.\u201d \tThe SC Supreme Court goes on to highlight \u201cincorrect statements\u201d that were made by the State\u2019s DNA expert in response to \u201cconfusing questions from the assistant solicitor.\u201d \tThe Court calls out the assistant solicitor\u2019s \u201ccasual use of scientific terms\u201d as \u201cstriking.\u201d \tReferring to the assistant solicitor\u2019s questions to the state\u2019s DNA expert, the Court says \u201cWe do not fully understand the assistant solicitor\u2019s questions, so Gallman probably did not understand them either. The answers, however, are wrong.\u201d \tThe SC Supreme Court points out that the trial court was not in a position to know whether the solicitor\u2019s questions and answers were correct and appropriate, because the assistant solicitor did not provide a factual or scientific basis for the testimony. \u201cThe 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.\u201d \t\u201cThe root of the trial court\u2019s 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\u2019s opinion. Second, the State presented an incomplete factual and scientific basis for the admission of the expert\u2019s 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\u2019 DNA was on the gun and in the jeans pocket.\u201d \t\u201cMore 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.\u201d The SC Supreme Court found that the errors were not harmless. Although there is a risk that \u201cthe jury might unknowingly or accidentally confuse the complicated concepts underlying DNA evidence,\u201d in this case the prosecutor repeatedly made incorrect statements to the Court and the jury, all but guaranteeing that the jury would be confused and misled: 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. Are Touch DNA, Non-Exclusion DNA, or Random Match Probability Admissible? Was this murder conviction reversed solely because the prosecutor did not do her homework, did not understand DNA evidence, and misled the jury about the science involved? Would the evidence have been admissible if it was presented in a more honest or competent manner? The SC Supreme Court says that \u201ceven 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.\u201d If there is a \u201csignificant potential the testimony will be confusing and misleading,\u201d the evidence is not admissible under Rule 403. GOT AXELROD? DNA evidence is invaluable for solving crimes and for exonerating the wrongfully convicted, but it can also be \u201cjunk science\u201d that is used by prosecutors to secure convictions when their evidence is shaky \u2013 resulting in more wrongful convictions. If you are facing\u00a0criminal charges where there may be DNA evidence, you\u00a0cannot\u00a0rely on the prosecution to fairly and impartially present DNA evidence to jurors in your case \u2013 you need a criminal defense lawyer who understands DNA evidence and who has access to DNA labs and experts who can debunk the junk science by explaining it to jurors or by keeping it out of court entirely. Call\u00a0now\u00a0at\u00a0843-353-3449\u00a0or\u00a0email us online\u00a0to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.