Scientific vs. Nonscientific Expert Testimony

When expert testimony is being offered, the trial court should follow SCRE 702 and the Daubert/Council procedure, and the court should make specific findings to each contested issue. In this case, the State used an expert to testify to DNA evidence. The Supreme Court explained that DNA is a very complicated subject and that expert testimony could be admitted to explain it to the jury. However, in this case, the trial court did not conduct a proper Daubert/Council hearing. The Court held that, based on the record, the State failed two factors: the State did not establish that the expert would assist the trier of the fact, and the DNA evidence’s probative value was substantially outweighed by its prejudicial effect. · State v. Phillips, 430 S.C. 319 (2020)

South Carolina has not adopted the Daubert standard, but it is very similar. A trial court should follow SCRE 702, and find that the evidence will assist the trier of the fact, the expert is qualified, and the underlying science is reliable. To determine reliability, the judge should apply the Jones factors. These factors include: “(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.” The judge should then make an SCRE 403 finding. · State v. Council, 335 S.C. 1 (1999)

All expert testimony must satisfy subject matter, expert qualifications, and reliability. “Thus, only after the trial court has found that expert testimony is necessary to assist the jury in resolving factual questions, the expert is qualified in the particular area, and the testimony is reliable, may the trial court admit the evidence and permit the jury to assign it such weight as it deems appropriate.” · Watson v. Ford Motor Co., 389 S.C. 434 (2010)


Expert testimony generally falls into two categories: scientific and nonscientific. The test for nonscientific expert testimony: “a trial court must determine whether: (1) the qualifications of the expert are sufficient and (2) the subject matter of the expert's testimony is reliable.” An expert should not testify as to a defendant’s state of mind or guilt. · State v. Prather, 429 S.C. 583 (2020). A trial court should determine what expertise an expert is qualified in and make sure that the expert does not testify to opinions outside of this specific field. Officer was qualified in drug identification, however, he ultimately testified to weight and analysis, which were both outside of what he was qualified for. · State v. Herrera, 425 S.C. 558 (2019)


Before an expert may testify, a judge needs to make preliminary findings, which are set forth in Council: Subject matter is beyond ordinary knowledge of jury; the expert must be qualified in that particular field; and the substance of the testimony must be reliable. If testimony is scientific in nature, court should consider: publications/peer reviews, prior application of the method to the type of evidence, quality control measures, and the consistency of the method with recognized scientific laws and procedures. If it is nonscientific in nature, then there is no set standard, but the judge will still be a gatekeeper. · Graves v. CAS Med. Sys., Inc., 401 S.C. 63 (2012)


There is not a specific formula for determining the requirements to qualify an expert in a nonscientific area. See also State v. Jones, 423 S.C. 631 (2018) (discussing nonscientific expert testimony); See also Holmes v. Haynsworth, Sinkler & Boyd, P.A., 408 S.C. 620 (2014) (All expert testimony must meet the requirements of SCRE 702, whether not it is scientific or nonscientific in nature.). · State v. Chavis, 412 S.C. 101 (2015)


All expert testimony must be vetted for its reliability, whether it is scientific or nonscientific. “To be clear, the reliability of a witness's testimony is not a pre-requisite to determining whether or not the witness is an expert. The expertise, reliability, and the ability of the testimony to assist the trier of fact are all threshold determinations to be made prior to the admission of expert testimony, and generally, a witness's expert status will be determined prior to determining the reliability of the testimony.” · State v. Tapp, 398 S.C. 376 (2012). Expert testimony falls under SCRE 702. The qualification of an expert witness is within the trial court’s discretion. · Maybank v. BB&T Corp., 416 S.C. 541 (2016). Experts cannot simply testify to hearsay because of SCRE 703, however, they can give their opinion based on facts and data that were not admitted into evidence. · State v. Kromah, 401 S.C. 340 (2013)


A qualified expert may give an opinion as to the scientific bases of a victim’s injury or death. Expert opinion testimony about state of mind or guilt is inadmissible. · State v. Commander, 396 S.C. 254 (2011). Expert opinion receives additional scrutiny because of how much weight an expert’s opinion may carry with a jury. · Watson v. Ford Motor Co., 389 S.C. 434 (2010). An expert does not have to be a statutory expert (i.e., comply with a statute to be professionally licensed). As long as the expert opinion complies with SCRE 702. · J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362 (2006)


Expert testimony exceeded the scope of his qualification when he testified as to whether or not the defendant was acting in self-defense. Expert was only qualified in crime scene processing and fingerprint identification. An expert may give his opinion on the ultimate issue, but only if they are qualified. · State v. Ellis, 345 S.C. 175 (2001). Expert opinion on issues of law is generally not admissible. An expert should not invade the trial court’s decision making. · Dawkins v. Fields, 354 S.C. 58 (2003). For out of court experiments to be admissible, they do not have to recreate the exact conditions, however they need substantial similarity. · State v. Frazier, 357 S.C. 161 (2004)



An expert should not be used as a conduit or surrogate for another expert’s scientific analysis. · Matter of Bilton, 432 S.C. 157 (Ct. App. 2020). A judge should not consider any answers or statements given in voir dire when assessing knowledge of an average juror. · State v. Jones, 423 S.C. 631 (2018). South Carolina state courts generally view expert testimony as “scientific” or “nonscientific.” However, the Fourth Circuit has also described “nonscientific” as “experiential” testimony and is based on the expert’s experience: “Experiential expert testimony, on the other hand, does not ‘rely on anything like a scientific method.’ Id. But this does not lead to a conclusion that ‘experience alone—or experience in conjunction with other knowledge, skill, training or education—may not provide a sufficient foundation for expert testimony. … While a district court's task in examining the reliability of experiential expert testimony is therefore somewhat more opaque, the district court must nonetheless require an experiential witness to ‘explain how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.’” · United States v. Wilson, 484 F.3d 267 (4th Cir. 2007)