I respectfully dissent. As explained below, I would find that Blackwell is mentally retarded36 and ineligible for the death penalty. Moreover, I would find the trial court’s error of law in refusing to consider whether Angela could be cross-examined based upon her mental health records requires a new trial on the issue of guilt. If there is to be a resentencing proceeding, then I would require the intellectual disability issue be (re) determined by the jury prior to hearing the aggravation/mitigation evidence. Should the jury determine he remains eligible, I would find the chaplains’ notes should have been admitted, and would permit the trial judge to rule on the use of mental health records at this stage of the proceedings.
A. Pre-trial Atkins 37 Determination
I agree with the majority that there is evidence in the record to support the trial judge’s conclusion, but find his decision is against the preponderance of the evidence. I would hold that Blackwell is ineligible for a death sentence because he is mentally retarded within the meaning of S.C. Code Ann. § 16-3-20(C)(b)(10) (2016), and would therefore vacate his death sentence.
*172At the pre-trial Atkins hearing, Blackwell had the burden of proving by a preponderance of the evidence that he was mentally retarded, that is, that he had “significantly subaver-age general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.” § 16-3-20(C)(b)(10); Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604 (2003), I agree with the majority that we should review the trial judge’s pre-trial Atkins determination using the same standard we employ when reviewing a trial court’s competency decision, that is, we should affirm that decision if it is “supported by the evidence and not against its preponderance.” State v. Weik, 356 S.C. 76, 81, 587 S.E.2d 683, 685 (2002) (internal citation omitted). In other words, our scope of review allows us to consider the weight of the evidence, as well as its existence. Id.; see also State v. Nance, 320 S.C. 501, 506, 466 S.E.2d 349, 352 (1996) (subsequent history omitted) (reviewing evidence of competency and indicating agreement with one doctor’s view).
Our statute requires that the defendant claiming to be ineligible for execution establish (1) significantly subaverage general intelligence and (2) defects in adaptive behavior such as communication, self-care, and self-direction that (3) manifest themselves during the developmental period, i.e., before the age of 18. State v. Stanko, supra. This case points out the special difficulties in making such a showing when the defendant committed the predicate offense at the age of 50,38 was first evaluated for mental retardation at age 53 39/55,40 and whose alleged intellectual disability places him in the mildly disabled range. In my view, we must keep in mind, as the State’s expert Dr. Brown recognized, “The absence of records indicating a diagnosis of intellectual disability prior to the age of eighteen cannot suffice to rule out such a diagnosis.”
In my opinion, the absence of contemporaneous I.Q. records from Blackwell’s youth led one of the State’s experts and the trial judge to rely on unreliable school records. Further, the *173dearth of information related to Blackwell’s early adaptive behavior led the experts and the trial judge to rely on Blackwell’s adult behavior, in violation of the statutory mandate that requires that the relevant period is the “developmental period.” While I agree that a focus on the defendant’s general intellectual functioning and adaptive behavior at the time he commits the offense more perfectly meets the Eighth Amendment concerns that underlie the Atkins bar,41 our statute mandates that the decision whether the defendant is mentally retarded and therefore ineligible for execution be based upon the defendant’s pre-majority status. State v. Stan-ko, supra; compare Hall, supra at 2001, remanding to allow the defendant to present evidence of “defects in adaptive functioning over his lifetime” as permitted under Florida law.42 As required by statute, I have focused my review on the scant evidence of Blackwell’s adaptive behavior before the age of 18 and upon the opinion of the expert I find most credible, Dr. Calloway, who testified on behalf of Blackwell.
Before reviewing the evidence, I explain why I discount the testimony of the State’s experts. Blackwell relied upon the testimony of Dr. Calloway, a psychologist who was qualified as an expert in mental retardation/intellectual disability assessment, and who conducted an Atkins exam. The State presented testimony from two experts, Dr. Brown and Dr. Harrison. Dr. Brown, who conducted an Atkins evaluation, was qualified as an expert in the field of clinical forensic psychology, and had, while primarily employed by the Department of Disabilities and Special Needs, conducted five Atkins evaluations. The State’s other expert witness, Dr. Harrison, also an expert in clinical forensic psychology, did not conduct an Atkins evaluation but instead examined Blackwell for competency pursuant to a court order.
*174While the trial judge discounted Dr. Calloway’s testimony in part because she “was required to issue a supplemental report to correct glaring errors in her initial report,” I am much more concerned by Dr. Brown’s reliance on Dr. Harrison’s demonstrably flawed conclusion. I accord little, if any, weight to Dr. Harrison’s opinion on the Atkins issue, especially since she was not asked to make such a finding, and conducted no investigation. Instead, Dr. Harrison testified that she determined during the course of her assessment of Blackwell’s competence to stand trial, including an hour and twenty-minute interview which she testified “was solely focused on his competency to stand trial,” that there was not “enough indication that would suggest referring the case to the DDSN” for an Atkins evaluation. Dr. Brown, the State’s Atkins expert, testified that while in Dr. Harrison’s report she “points out that there may be a strong possibility of mental retardation” she ultimately determined that Blackwell did not meet the criteria. My confidence in Dr. Brown’s analysis and Atkins opinion is seriously weakened by his admission that he gave “a great deal of significance” to Dr. Harrison’s opinion. As noted above, Dr. Harrison was not tasked with making a mental retardation assessment, and admittedly conducted no testing to arrive at her conclusion but rather relied upon what she perceived to be valid school I.Q. scores, and her competency interaction with Blackwell. However, both of the Atkins examiners, Dr. Brown and Dr. Calloway, testified that these school I.Q. scores were not reliable in that they were not true I.Q. tests but rather scores “derived” from other generalized testing. For these reasons, I find Dr. Harrison’s opinion that Blackwell is not mentally retarded to be of no value, and Dr. Brown’s Atkins conclusion to be substantially weakened by his admission that he was strongly influenced by that opinion.
Turning to the first mental retardation consideration, general subaverage intellectual functioning, defense expert Dr. Cal-loway testified, and the State’s expert Dr. Brown agreed, that their I.Q. testing of Blackwell conducted in his mid-50s revealed he was mildly retarded.43 While Dr. Brown speculated that perhaps Blackwell’s chemotherapy, a four-wheeler aeci-*175dent, and alcohol and drug use after the age of 18 may have affected his I.Q. score, he agreed there was “absolutely no evidence of that.” Despite Dr. Brown’s candid testimony that there was no evidence that any of these post-developmental period events had impacted Blackwell’s I.Q., the trial judge found Blackwell’s current low I.Q. scores “carry with them the possibility that they may have been adversely affected by events occurring in his adult life.”
The trial judge found “the most reliable measures of Blackwell’s I.Q. prior to age 18” are found in school “I.Q.” scores and held he could not rule out the possibility that Blackwell’s I.Q. had deteriorated during his adult years, concluding Blackwell had not met his burden of proving that he had “general subaverage intellectual functioning that manifested itself during the developmental period.” I disagree. I would find the weight of the evidence preponderates in favor of a finding that Blackwell exhibited “significantly subaverage general intellectual functioning ... during the developmental period” within the meaning of § 16-3-20(C)(b)(10). In making this finding, I rely not only on the Atkins experts’ opinions but also on Blackwell’s academic performance, which is probative of both his general intellectual functioning and his adaptive behavior.
The question whether the evidence preponderates in favor of a finding that Blackwell had deficits in adaptive behavior before the age of 18 is closer, in large part because it requires hindsight and necessarily relies on the memories and recollections of persons who knew Blackwell more than 35 years ago. Before looking at the evidence here, I note that in Stanko we spoke of adaptive behavior as evidenced by significant limitations in skills such as communication, self-care, and self-direction, citing Atkins. State v. Stanko, 402 S.C. at 286, 741 S.E.2d at 726. As I read the United States Supreme Court’s more recent discussion of adaptive behavior in Hall v. Florida, we should also look broadly at the individual’s ability to learn basic skills and to adjust his behavior to changing circumstances.
Here, the school records demonstrate that in elementary school standardized achievement testing Blackwell received only a single score which placed him above the 50% average score. By high school, Blackwell was placed in classes for *176children who were achieving at a lower level. These “adjunct classes” were offered in lieu of special education classes, and, as in those classes, the course work was geared to the individual’s ability. The classes were not on the regular academic track but were more of a vocational nature. Despite being placed in these adjunct classes, Blackwell failed the ninth grade, and then dropped out during the 11th grade at which point his class standing was 113th in a class of 113.44 A high school teacher reported he was not a troublemaker, blended in, and would speak if spoken to.
A number of individuals were administered the Adaptive Behavior System (ABAS-II) scale by Dr. Calloway. While the State’s Atkins expert Dr. Brown discounted the usefulness of ABAS testing, he acknowledged it was “the best that we have” especially to measure the Stcmko/Atkins adaptive behavior factors. Four of these individuals, Blackwell’s parents, a teacher (Scruggs), and a neighbor (White), knew Blackwell as a child. The average of these four individuals’ scores on “Communication” was 4, which is considered a significantly low score (the average score is 10). On the “Self-Care” scale, the average of these four individuals was 6, while on the self-direction scale (only three persons participating), the average score was 5.3, again well below average. Dr. Calloway, the defense expert, found the ABAS-II results, other records, and additional information, demonstrated that Blackwell had adaptive behavior deficits which manifested themselves before the age of 18. Dr. Brown, the State’s expert, merely opined that while Blackwell arguably demonstrates significant adaptive deficits at age 55, it is “not clear” whether he met the criteria before age 18. Dr. Brown also testified he was troubled by the use of ABAS-II to relate back to Blackwell’s functioning before the age of 18, and that he relied instead on Blackwell’s vocational history after the age of 18, his ability as an adult to obtain a Commercial Driver’s license, and the fact that Blackwell was “on track” to graduate when he dropped out of high school. In my opinion, while imperfect, the ABAS-II relates to Blackwell’s developmental period which is the appropriate evaluation period.
*177To the extent he relied on post-18 conduct, Dr. Brown’s opinion is flawed, leaving standing only his opinion that it is “not clear” whether Blackwell’s pre-18 adaptive behavior was deficient. Finally, as the United States Supreme Court instructed in Hall v. Florida, I look at the test results of basic academic skills administered to Blackwell at age 17. The results indicate he was reading at a grade level of 5.8, while his arithmetic scores tested at grade level 5.6. In my opinion, Blackwell met his burden of showing his deficits in adaptive behavior during the developmental period.
The trial judge, however, found no evidence that Blackwell was “unable to function at his home before his eighteenth birthday,” that he attended school regularly and did not fail a grade until high school, and that he was able to earn high school credits before dropping out. In my opinion, these findings are supported by the record but do not properly focus on specific conduct which demonstrates adaptive behavior. Further, while the trial court found Blackwell’s achievement scores at the age of 18, which show him functioning like an average mid-year fifth grader, was evidence of “average general intellectual functioning,” I find them consistent with mild mental retardation. Finally, the trial court relied upon Blackwell’s post-majority employment history and his twenty-six year marriage, which included raising two children, to conclude that while there were factors which raised the possibility of mental retardation, Blackwell did not meet his burden of proof. In my opinion, it is improper to use post-developmental adaptive behavior to determine statutory mental retardation. In addition, I note these broad outlines of Blackwell’s post-18 life ignore the details which demonstrate Blackwell’s significant limitations, such as an inability to manage a household and live alone, to pay bills, etc. This “broad view” error is also reflected in the trial judge’s finding that Blackwell was “on track to graduate” when he left high school in 11th grade, which does not focus on Blackwell’s largely marginal functioning in adjunct classes.45
*178As explained above, while there is evidence that would support the trial judge’s decision, I find Dr. Calloway to be the most credible Atkins examiner, and I find that her opinion and the other evidence in the record preponderates in favor of a finding that Blackwell is mildly mentally retarded within the meaning of § 16-3-20(C)(b)(10) and therefore ineligible for the death penalty.
B. Cross-Examination with Privileged Mental Health Records
I agree with the majority that a criminal defendant’s Sixth Amendment right to confrontation may trump a witness’ state constitutional right to privacy and/or statutory privilege in her confidential mental health records. In my opinion, having decided this novel issue of law in Blackwell’s favor and determined that the trial court committed an error of law in refusing to consider whether Blackwell could use these records in cross-examining or impeaching Angela during the guilt phase or in the penalty phase, we must reverse and remand in order to permit the trial judge to exercise his discretion. It is not within our appellate scope of review to make these rulings for the first time on appeal. State v. Hewins, 409 S.C. 93, 102-103, 760 S.E.2d 814, 819 (2014) (in criminal case appellate court reviews errors of law only; exclusion of evidence based on error of law is abuse of discretion requiring reversal). I therefore dissent from the majority’s decision to supplant the trial judge’s discretion and rule on a factual issue on appeal. See State v. Hewins, supra at 118-119, 760 S.E.2d at 827 (2014) (Pleicones, C.J., dissenting from majority’s decision to rule on merits of a suppression motion on appeal).
In addition, I do not believe the majority proposes a workable procedure to deal with the disclosure issue going forward. By holding that the judge alone reviews the mental health records and, without benefit of input from the advocates and prior to hearing any evidence, both weighs the witness’ “importance” to the ease and determines whether the records contain impeaching or exculpatory evidence, the majority imposes on the trial judge an unreasonable burden. The un*179workable nature of this procedure is demonstrated by the majority’s own analysis, which relies on the record first to understand the defense’s strategy and then to weigh the State’s evidence of malice, before citing cumulative evidence as the reason to deny Blackwell the opportunity to have the trial judge review his request. In addition, the majority relies on Blackwell’s admission that he killed the victim as admission of guilt precluding any prejudice finding, and in so doing discounts the potential relevance of the evidence in the mental health records to Blackwell’s mental duress mitigation claim in the sentencing phase.
I respectfully dissent and would reverse and remand, with instructions that attorneys may have access to the mental health records prior to an in camera hearing on their use in the cross-examination of a witness, and that any pre-testimony ruling may be revisited during the trial, depending on the actual testimony of the witness.
C. Chaplains’ Notes
During the penalty phase, Blackwell sought to introduce the notes made by two hospital chaplains to rebut the State’s evidence that immediately after the killing Blackwell exhibited no remorse. The chaplains’ records were proffered by the hospital’s records custodian under the “business records” exception to the hearsay rule, Rule 803(6), SCRE, and not, as the majority suggests, as “Medical Diagnosis or Treatment” statements under Rule 803(4), SCRE. To the extent the notes record Blackwell’s contemporaneous expressions of remorse,46 they cannot be, as the majority states “inadmissible subjective opinions and judgments” under Rule 803(6). Further, the refusal to admit the chaplains’ contemporaneous impressions of Blackwell’s regret and remorse, while perhaps subjective (even though made by professionals uniquely prepared to make exactly these types of judgments) denied Blackwell’s jury the right to consider this mitigation evidence. The United States Supreme Court has repeatedly cautioned “that reliable hearsay evidence that is relevant to a capital defendant’s *180mitigation defense should not be excluded by rote application of a state hearsay rule.” Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) fn. 6 citing Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed,2d 297 (1973); cf. State v. Mercer, 381 S.C. 149, 161, 672 S.E.2d 556, 562 (2009) (Rule 403, SCRE, “should be cautiously invoked against a capital defendant in the penalty phase, especially in light of the due process implications at stake when a capital defendant seeks to introduce mitigation evidence”). In my opinion, the trial court erred in refusing to admit these records.
Finally, I disagree that the after-the-fact evidence of remorse testified to by Blackwell’s daughter and minister, as well as the testimony of Dr. Schwartz-Watts, is cumulative to Blackwell’s contemporaneous expressions of remorse reflected in the chaplains’ notes. I would reverse and remand the sentence on this ground alone.
D. Mental Retardation During Penalty Phase
I agree with the majority that a capital jury must find, as a prerequisite to proceeding to decide the appropriate sentence, that the defendant is not mentally retarded. Further, I agree that where the issue of mental retardation is raised by the evidence, the burden is on the defendant to prove this disqualifying factor by a preponderance of the evidence and the jury should be so instructed. In my opinion, however, mental retardation is not an “affirmative defense” as the majority states, but rather a condition whose absence is a necessary predicate to the State’s right to seek the death penalty.
I would borrow our sister state of North Carolina’s statutory procedure47 whereby if the defendant asserts intellectual disability as a disqualifying fact during the sentencing phase, all evidence relevant to that issue should be presented first, and the jury instructed on this issue alone prior to the introduction of any mitigating or aggravating evidence. If the jury determines by special interrogatory following the presentation of the evidence that the defendant is mentally retarded, then the defendant should be sentenced by the judge. In my *181opinion, a jury that is permitted to consider the mental retardation issue in isolation, prior to the evidence of aggravation and mitigation, is more likely to be able to fairly consider the question than one whose view of the defendant has been shaped by the sentencing phase evidence that is both irrelevant and prejudicial to the claim of intellectual disability. I would reverse and remand Blackwell’s sentence on this ground as well.
E. Conclusion
In my opinion, we should set aside Blackwell’s capital sentence because he proved, by a preponderance of the evidence that he is (mildly) mentally retarded within the meaning of § 16-3-20(C)(b)(10). I would reverse and remand for a new trial based upon the trial judge’s error of law in refusing to consider whether Blackwell should have been permitted to utilize the witness’ confidential mental health records in cross-examination. Finally, I would hold that if a new sentencing proceeding is held, the trial judge should again consider the use of the witness’ records, should permit the use of the chaplains’ notes, and that the two-step procedure should be used to allow the sentencing jury to decide the mental retardation issue before hearing any other evidence.
. As the applicable statute employs this term, I use it here as well. Cf., State v. Stanko, 402 S.C. 252, 741 S.E.2d 708 (2013) (finding the applicable definition is that in S.C, Code Ann. § 44-20-30 (Supp. 2015), which uses the term "intellectual disability,” defined identically to "mental retardation” in death penalty statute).
. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Blackwell's date of birth is November 18, 19S8, and the offense was committed in July 2009.
. Dr. Calloway’s evaluation.
. Dr. Brown’s evaluation.
. Those concerns are that intellectually disabled persons, while frequently aware of the difference between right and wrong and competent to stand trial are, nonetheless, "likely unable to make the calculated judgments that are the premise for the deterrence rationale," that their intellectual disability "lessens moral culpability and hence the retributive value of the punishment;” and the concern for "the integrity of the trial process.” Hall v. Florida, 134 S.Ct. 1986, 1993 (2014).
. See, e.g., Jones v. State, 966 So.3d 319 (Fla. 2002).
. Dr. Calloway obtained a score of 63 or 65 and Dr. Brown of 68. Dr. Brown agreed Blackwell’s score "clearly puts” him in the mentally ■ retarded range.
. The trial judge was impressed by Blackwell’s grade of "90” for the first semester of “Family Living.” I am not so very impressed given in another adjunct class he was given credit for mowing the athletic fields.
. I fear that the trial judge's reliance on Blackwell’s "perceived adaptive strengths” will be found to have unconstitutionally skewed his view of the evidence since, as the United States Supreme Court recently explained, "the medical community focuses the adaptive-functioning *178inquiry on adaptive deficits." Moore v. Texas, 581 U.S. -, -, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017) (emphasis in original).
. E.g., that Blackwell was sad, wanted to tell his grandchildren he loved them, asked for prayers for the family, and prayed the Lord’s Prayer with the chaplain.
. See N.C.G.S. § 15A-2005(e) (2007).