I
1 IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
2 HARRISBURG DIVISION
3 TAMMY KITZMILLER, et a]., CASE NO.
Plaintiffs 4:04-CV-02688
4 vs.
DOVER SCHOOL DISTRICT, Harrisburg, PA
5 Defendant 5 October 2005
9:00 a.m.
6
7 TRANSCRIPT OF CIVIL BENCH TRIAL PROCEEDINGS
TRIAL DAY 6, MORNING SESSION
8 BEFORE THE HONORABLE JOHN E. JONES, III
UNITED STATES DISTRICT JUDGE
9
APPEARANCES:
10
For the Plaintiffs:
11 EricJ. Rothschild, Esq.
Thomas B. Schmidt, III, Esq.
12 Stephen G. Harvey, Esq.
Pepper Hamilton, L.L.P.
13 3000 Two Logan Square
18th & Arch Streets
14 Philadelphia, PA 19103-2799
(215) 380-1992
15
For the Defendant:
16
Patrick Gillen, Esq.
17 Robert J. Muise, Esq.
Richard Thompson, Esq.
18 The Thomas More Law Center
24 Franklin Lloyd Wright Drive
19 P.O. Box 393
Ann Arbor, MI 48106
20 (734) 930-7145
21 Court Reporter:
22 Wesley J. Armstrong, RMR
Official Court Reporter
23 U.S. Courthouse
228 Walnut Street
24 Harrisburg, PA 17108
(717) 542-5569
25
U.S. District Court, Middle District of PA
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1 APPEARANCES (Continued)
2 For the American Civil Liberties Union:
3 Witold J. Walczak, Esq.
American Civil Liberties Union
4 313 Atwood Street
Pittsburgh, PA 15213
5 (412) 681-7864
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U.S. District Court, Middle District of PA
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1 INDEX
Kitzmiller vs. Dover Schools
2 4: 04-CV-2688
Trial Day 6, Morning Session
3 5 October 2005
4
PROCEEDI NGS
5 Page
6 PLAINTIFF WITNESSES
7 Dr. Barbara Forrest, Ph.D.:
8 EXAMINATION ON QUALIFICATIONS:
9 Direct by Mr. Rothschild 4
Cross by Mr. Muise 22
10 Redirect by Mr. Rothschild 70
11
EXAMINATION ON EXPERT OPINION:
12
Direct examination by Mr. Rothschild 76
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U.S. District Court, Middle District of PA
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1 PROCEEDINGS
2 THE COURT: Be seated, please. We welcome
3 you all back for the continuation of the
4 Kitzmiller et a]. versus Dover Area School
5 District. et a]. trial. We remain in the
6 plaintiff’s case, and you may call your next
7 witness.
8 MR. ROTHSCHILD: Good morning, Your Honor.
9 The plaintiffs call Dr. Barbara Forrest.
10 (Dr. Barbara Forrest was called to testify
11 and was sworn by the courtroom deputy.)
12 COURTROOM DEPUTY: Please be seated. State
13 your name and spell your name for the record.
14 THE WITNESS: Barbara Forrest.
15 B-A-R-B-A-R-A, F-O-R-R-E-S-T.
16 DIRECT EXAMINATION ON QUALIFICATIONS
17 BY MR. ROTHSCHILD:
18 Q. Good morning, Dr. Forrest.
19 A. Good morning.
20 Q. Where do you live?
21 A. I live in Holden, Louisiana.
22 Q. Are you marri ed?
23 A. Yes.
24 Q. And do you have children?
25 A. I do.
U.S. District Court, Middle District of PA
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1 Q. How many?
2 A. I haveason 25, and another son who is 20.
3 Q. What do you do for a living?
4 A. I’m a professor of philosophy at
5 Southeastern Louisiana University.
6 Q. Matt, could you pull up Exhibit P-348?
7 Dr. Forrest, is P-348 a copy of your curriculum
8 vitae?
9 A. Yes, it is.
10 Q. And is it an accurate representation of
11 your education, professional experience, and
12 accomplishments?
13 A. Yes.
14 Q. What subjects do you teach at Southeastern
15 Louisiana?
16 A. I teach philosophy 301 and philosophy 302,
17 which are introductory courses. I teach
18 philosophy 310, critical thinking. I teach
19 philosophy 315, the philosophy of history.
20 Philosophy 417, intellectual history. I teach
21 an independent studies course, philosophy 418.
22 I teach history 630, which is a graduate seminar
23 in the history of western thought, and I teach
24 western civilization.
25 Q. Do you have a doctorate degree?
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1 A. I do.
2 Q. And where did you take that degree?
3 A. Tulane University.
4 Q. Did you write a dissertation?
5 A. Yes.
6 Q. What was that dissertation about?
7 A. It was the study of the influence of Sidney
8 Hook’s naturalism on his philosophy of
9 education.
10 Q. And before we go into that, are you a
11 doctor of philosophy?
12 A. Yes.
13 Q. Who is Sidney Hook?
14 A. Sidney Hook was a very prominent American
15 philosopher in the 20th century.
16 Q. And -- I’m sorry?
17 A. And a close disciple to John Dewey.
18 Q. Do you subscribe to any particular school
19 of philosophy or approach to philosophy?
20 A. Yes.
21 Q. And what is that?
22 A. I place myself in the tradition of John
23 Dewey and Sidney Hook, which is called pragmatic
24 naturalism.
25 Q. And what do you mean by that, pragmatic
U.S. District Court, Middle District of PA
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1 naturalism?
2 A. Well, we’ll take the pragmatic part first.
3 That reflects an American school of philosophy,
4 pragmatism, and for Dewey and Hook as they
5 understand it, it means that an idea is tested
6 by whether it helps us resolve a situation of
7 doubt or uncertainty or helps us resolve a,
8 solve a practical problem, and one of the things
9 that they noted was that the patterns of inquiry
10 that are part of the everyday process of
11 answering questions, resolving uncertainty, or
12 solving problems, really matched the processes
13 that are used in science.
14 So those patterns of inquiry were not
15 invented in science, but they were used very
16 effectively, very systematically in science.
17 Those patterns of inquiry call upon the
18 cognitive faculties that human beings have,
19 and because they do, those faculties don’t reach
20 beyond the natural world into the supernatural
21 world. So the conclusions that we reach about
22 the world are naturalistic, hence the pragmatic
23 naturalism part.
24 Q. And for Wes’s benefit I’m going to ask that
25 you slow down a little bit.
U.S. District Court, Middle District of PA
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1 A. Thank you.
2 Q. How does that approach of pragmatic
3 naturalism figure into scholarly research?
4 A. Into my scholarly research? One of the
5 things that pragmatic naturalism emphasizes
6 very strongly is that conclusions about the
7 world must be grounded in data, and the same
8 applies to public policy issues. One of the
9 things that Sidney Hook for example stressed
10 strongly is that when philosophers become
11 involved in public policy issues they must
12 know the facts. So that it really does stress
13 the use of empirical data and being very
14 careful about the acquisition of that data.
15 Q. Are you familiar with the term
16 philosophical naturalism?
17 A. Yes.
18 Q. What does that mean?
19 A. Philosophical naturalism is a comprehensive
20 understanding of reality which excludes the
21 supernatural. It is one which looks at the
22 natural world as the entirety of what exists.
23 Q. And are you familiar with the term
24 methodological naturalism?
25 A. Yes.
U.S. District Court, Middle District of PA
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1 Q. What does that mean?
2 A. Methodological naturalism is really another
3 term for scientific method. It’s a regulative
4 principle. It’s a procedural protocol that
5 scientists use. It means very simply that they
6 look for natural explanations for natural
7 phenomena.
8 Q. Is philosophical naturalism part of the
9 scientific method?
10 A. No, it’s not.
11 Q. Have you focused your academic research on
12 any particular subject?
13 A. Yes.
14 Q. And what is that?
15 A. I have focused my research on issues
16 surrounding evolution, the teaching of
17 evolution, and the creationism issue.
18 Q. When you use the term creationism, what
19 do you mean?
20 A. Creationism means a number of things.
21 First and foremost it means rejection of
22 evolutionary theory in favor of special creation
23 by a supernatural deity. It also involves a
24 rejection of the established methodologies of
25 science, and this is all
U.S. District Court, Middle District of PA
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1 for religious reason.
2 Q. And when you say the established rules o
3 science, are you referring to methodological
4 naturalism?
5 A. Yes. The naturalistic methodology that I
6 just explained.
7 Q. Is there only one type of creationism or
8 are there multiple kinds?
9 A. There are multiple kinds.
10 Q. Can you describe the types of creationism?
11 A. Well, the oldest kind is young earth
12 creationism.
13 MR. MUISE: Your Honor, I’m going to object.
14 He’s asking questions of explanation, she’s
15 obviously offering her opinions now on this
16 case, and we obviously want to voir dire her
17 about her ability to offer opinions, and this is
18 going into really the heart of what her opinions
19 are, the various forms of creationism and so
20 forth.
21 MR. ROTHSCHILD: Your Honor, I’m not going
22 to go into opinions in detail, but I think to
23 ground us, she’s using terminology and I think
24 it’s important even for the voir dire and for
25 your fact finding on Dr. Forrest’s
U.S. District Court, Middle District of PA
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1 qualifications to understand what we’re talking
2 about here.
3 MR. MUISE: Again, Your Honor, it’s a very
4 fine line here between what the definition and
5 what she’s actually offering in terms of what
6 an opinion is. If we would disagree with what
7 obviously her “definitions,” they’re really
8 sliding into opinions at this point.
9 THE COURT: I think that given the hybrid
10 nature of this proposed expert that some inquiry
11 into this areas is probably necessary. I’ll
12 overrule the objection as it relates to that
13 particular question, which is on young earth
14 creationism, Mr. Muise, but certainly that
15 would not estop additional objections if you
16 feel that the witness is getting too deeply
17 into those areas.
18 It think it’s essential to the plaintiff’s
19 examination in the voir dire statement of this
20 witness to get into some of those areas. So
21 it’s certainly a, it’s an appropriate objection
22 under the circumstances, but I don’t think that
23 she’s far enough into the area that I find an
24 objection needs to be sustained. So we’ll
25 overrule the objection. We need to proceed.
U.S. District Court, Middle District of PA
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1 I don’t know that the question was answered.
2 Wes, do you want to read back, or do you recall
3 the question?
4 MR. ROTHSCHILD. If you could read back the
5 question, Wes, that would be great.
6 THE COURT: Thank you, Wes.
7 (The record was read by the reporter.)
8 THE WITNESS: Would you like me to start
9 over with that answer?
10 THE COURT: You may. You can start, my
11 recollection now is that you were, the objection
12 was rendered mid-answer, so you can restart.
13 All right?
14 THE WITNESS: There is young earth
15 creationism, which is the view that the earth
16 is six to ten thousand years old. There’s also
17 old earth creationism, which is the view that
18 the earth is several billion years old.
19 BY MR. ROTHSCHILD:
20 Q. As part of your study of evolution and
21 creationism have you studied the subject of
22 intelligent design?
23 A. Yes.
24 Q. And are you familiar with intelligent
25 design being described as a movement?
U.S. District Court, Middle District of PA
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1 A. Yes.
2 Q. And who describes it that way?
3 A. The proponents of intelligent design, its
4 leaders have described it as a movement.
5 Q. And as you understand how they’re using the
6 term, what do they mean by the term movement?
7 A. It’s an organized effort that centers
8 around the execution of a particular program
9 that they have.
10 Q. Are you familiar with other scientific
11 topics or theories being described as a
12 movement? Is there a chemistry movement or
13 a germ theory movement?
14 A. I’ve never heard it described as such, no.
15 Q. How do you study a movement?
16 A. You look at everything they do. I’ve
17 looked at their writings, the things that they
18 themselves have written. You look at interviews
19 that have been done with them. I’ve looked at
20 speeches that they’ve given. I’ve listened to
21 speeches. I’ve read articles about them. I’ve
22 have even looked at their conference
23 proceedings. You look at everything.
24 Q. Do you have specialized knowledge about
25 the history and nature of the intelligent
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1 design movement?
2 A. Yes.
3 Q. And how did you acquire that knowledge?
4 A. By doing research into the movement’s
5 activities, looking at all of their activities,
6 looking at what they have written, all of the
7 stuff, the things that I just mentioned.
8 Q. Do you discriminate or distinguish between
9 primary sources and secondary sources in doing
10 your work?
11 A. Yes. There is a difference.
12 Q. And explain to us how you use the terms
13 primary source and secondary source.
14 A. Well, in scholarship, a primary source is
15 something written by let’s say the person that
16 you’re studying, a book or an article that’s
17 been written by a person. Secondary sources
18 are sources that are about those people or
19 about their work, articles.
20 Q. And is it common in your academic
21 discipline to use both kinds of sources to
22 study whatever topic you’re studying?
23 A. Yes. That’s standard procedure.
24 Q. And have you in fact done that in your
25 study of the intelligent design movement?
U.S. District Court, Middle District of PA
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1 A. Yes.
2 Q. Have you interviewed members of the
3 intelligent design movement?
4 A. Directly no.
5 Q. And why not?
6 A. I wanted to study the movement and
7 understand it by looking at the way they
8 explain it to their intended audiences. I
9 wanted to see how they themselves explain
10 it when they’re actually addressing their
11 audience.
12 Q. For how long have you done research on
13 the subject of intelligent design?
14 A. Going on now if you count the two scholarly
15 articles I published in 1999, 2000, going on now
16 about eight years.
17 Q. And in addition to those articles have you
18 written a book on the subject of intelligent
19 design?
20 A. Yes, I’ve written a book.
21 Q. Matt, could you pull up Exhibit 630? Is
22 this the cover page of the book you wrote on
23 the subject of intelligent design?
24 A. Yes.
25 Q. That’s called Creationism’s Trojan Horse:
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1 The Wedge of Intelligent Design?
2 A. Yes.
3 Q. You’re obviously listed as the first
4 author. The second author there, Paul Gross,
5 who is he?
6 A. Paul R. Gross, my co-author, is a
7 scientist.
8 Q. Who is this book published by?
9 A. Oxford University Press, 2004.
10 Q. And is that a leading academic press?
11 A. It’s one of the world’s leading academic
12 presses, yes.
13 Q. The title includes the term “the wedge,”
14 the wedge of intelligent design. Why did you
15 use that word?
16 A. That’s a word that the intelligent design
17 leaders themselves use. It’s a word they use to
18 describe their movement which is guided by a
19 document called the Wedge Strategy. So it’s a
20 term that they coined.
21 Q. And who coined, do you know who coined the
22 term?
23 A. The wedge? Yes. Phillip Johnson.
24 Q. Who is Phillip Johnson?
25 A. Phillip Johnson is the de facto leader of
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1 group. He’s the gentleman that brought the
2 other members of the group together. He’s also
3 the advisor for the Center for Science and
4 Culture.
5 Q. What is Mr. Johnson’s background? Is he a
6 scientist?
7 A. No. He’s retired now, but he was a law
8 professor at the University of California at
9 Berkley.
10 Q. And you referred to the Center for Science
11 and Culture. What is that?
12 A. That was an organization that was
13 established in 1996 under the auspices of The
14 Discovery Institute. In 1996 it was actually
15 called the Center for the Renewal of Science and
16 Culture. That is the organization in which the
17 strategy of the intelligent design movement is
18 being formally carried out.
19 Q. And you referred to a document, what is
20 that document called?
21 A. It’s a document called The Wedge Strategy.
22 Q. And who wrote that?
23 A. Members of the intelligent design movement.
24 It’s a tactical document that they, in which
25 they outline their goals and their activities.
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1 Q. Does it have any connection with The
2 Discovery Institute?
3 A. Well, yes. It was written under the
4 auspices, it was written, it’s a formal
5 statement of the strategy of The Center for
6 the Renewal of Science and Culture.
7 Q. And we’ll go into that later after the
8 voir dire. Can you tell us what Creationism’s
9 Trojan Horse is about?
10 A. The book actually looks at the way the
11 intelligent design movement is, or The Center
12 for the Renewal of Science and Culture, now
13 called the Center for Science and Culture, looks
14 at the way they’re executing the Wedge Strategy,
15 looks at all of the activities that they have
16 engaged to execute the various phases of the
17 strategy. The book also does, my co-author does
18 some scientific critique in the book, and we
19 also analyze the movement and explain the
20 significance of these activities.
21 Q. How did you go about researching that book?
22 A. I went about researching the book by
23 looking at all of, every piece of written
24 information I could find that would explain
25 what this movement is about. I did a great deal
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1 of, spent three and a half years doing empi ri cal
2 research.
3 Q. Using primary sources and secondary
4 sources?
5 A. Both, yes.
6 Q. Did your research include anything relating
7 to scientific production?
8 A. Yes, it did.
9 Q. What did you do?
10 A. I wanted to find out if there were any
11 articles in peer reviewed scientific journals
12 using intelligent design as a biological theory.
13 So I searched the scientific databases where
14 those articles would be indexed.
15 Q. What conclusions did you reach in
16 Creationism’s Trojan Horse?
17 A. That intelligent design --
18 MR. GILLEN: Objection, Your Honor. He’s
19 specifically asking for the conclusions, which I
20 believe would be a direct question going to her
21 opinion that she’s going to be offering in this
22 case.
23 MR. ROTHSCHILD: Your Honor, this is about
24 her scholarly work, writing Creationism’s Trojan
25 Horse ,not about her opinions in this case,
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1 although they will be very similar.
2 THE COURT: Well, I think that probably
3 now crosses the line and exceeds appropriate
4 voir dire. I think it’s sufficient for
5 qualifications to get into her scholarly works,
6 the methodology that she utilized in compiling
7 the scholarly work, time spent for example, but
8 I think a question which touches on the ultimate
9 issue, which that was, likely now indicates that
10 Mr. Muise objection is well founded. So I’ll
11 sustain the objection on that question.
12 MR. ROTHSCHILD: Thank you, Your Honor.
13 BY MR. ROTHSCHILD:
14 Q. Have you done -- besides Creationism’s
15 Trojan Horse have you done other writing on
16 intelligent design?
17 A. Yes.
18 Q. And are those reflected on your curriculum
19 vitae?
20 A. Yes, they’re there.
21 Q. Do you have expertise in philosophical
22 issues relating to naturalism?
23 A. Yes, I’ve done some work in that.
24 Q. Do you have expertise in the history and
25 nature of the intelligent design movement,
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1 including its creationist roots?
2 A. Yes.
3 Q. Did you write an expert report in this
4 case?
5 A. Yes.
6 Q. How many expert reports did you write?
7 A. I wrote the expert witness report, and
8 I wrote a supplement to that report.
9 Q. What was the first expert report about?
10 A. It really very closely mirrors the research
11 I have done, for example the research I did on
12 book, it’s a summary of actually what the, the
13 work I did on the book. It talks about the
14 nature of the intelligent design movement.
15 Q. And what kind of materials did you rely
16 upon in preparing your first report?
17 A. I relied mostly on the materials, the same
18 materials I used in writing the book, and also
19 some materials on file in the archives at the
20 National Center for Science Education.
21 Q. What was the second report about?
22 A. The supplementary report is about the
23 textbook Of Pandas and People.
24 Q. And what materials did you rely upon to
25 prepare that report?
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1 A. I relied on materials that were issued
2 under subpoena from the Foundation For Thought
3 And Ethics supplied to me by the legal team.
4 Q. And Matt, if you could pull up Exhibit 347?
5 Is that the first page of your first expert
6 report?
7 A. Yes, it is.
8 Q. And Matt, if you could pull up Exhibit 349,
9 is that the first page of your supplemental
10 expert report?
11 A. Yes.
12 MR. ROTHSCHILD: Your Honor, at this time
13 I’d like to move to qualify Barbara Forrest as
14 an expert in philosophical issues relating to
15 naturalism and the history and nature of the
16 intelligent design movement, including its
17 creationist roots.
18 THE COURT: All right, Mr. Muise, you may
19 question on qualifications.
20 MR. MUISE: Thank you, Your Honor.
21 CROSS EXAMINATION ON QUALIFICATIONS
22 BY MR. MUISE:
23 Q. Good morning, Dr. Forrest.
24 A. Good morning.
25 Q. You’re not an expert in science, correct?
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1 A. No, I’m not a scientist.
2 Q. And you have no formal scientific trai ni ng?
3 A. No.
4 Q. You have no training in biochemistry?
5 A. No.
6 Q. You have no training in microbiology?
7 A. No.
8 Q. You’re not trained as a biologist?
9 A. No, I’m not a biologist.
10 Q. So it would be true to say that you
11 don’t know whether Darwin’s theory of evolution
12 has provided a detailed testable rigorous
13 explanation for the origin of new complex
14 biological systems, would that be accurate?
15 A. Actually that is the kind of knowledge that
16 any person that has some understanding of
17 science would know, an educated person would
18 know that that is an established theory.
19 Q. But with regard to my question, do you know
20 whether or not Darwin’s theory of evolution
21 has provided a detailed testable rigorous
22 explanation for the origin of new complex
23 biological features?
24 A. As my understanding is, yes, it has.
25 Q. Do you know whether the theory of
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1 evolution, in particular natural selection,
2 can explain the existence of the genetic code?
3 A. Excuse me, repeat the question, please?
4 Q. Sure. Do you know whether the theory of
5 evolution, in particular natural selection, can
6 explain the existence of the genetic code?
7 A. My understanding is that natural selection
8 does offer some explanation for that. I could
9 not give you the explanation as a scientist
10 would give it to you of course.
11 Q. Do you know whether the theory of
12 evolution, in particular natural selection,
13 can explain the development of the pathways
14 for the construction of the flagellum?
15 A. As I understand it there is work being done
16 on that as of now, yes. It does offer some
17 explanation.
18 Q. Do you know whether the theory of
19 evolution, in particular natural selection,
20 can explain the existence of defensive apparatus
21 such as the blood clotting system and the
22 immunity system?
23 A. All of those things are being addressed,
24 yes.
25 Q. You have no particular scientific expertise
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1 to be able to address those questions, is that
2 correct?
3 A. No, sir, that’s not my area of expertise,
4 no.
5 Q. So it would be fair to say that you’re not
6 qualified to give an opinion as to whether the
7 bacterial flagellum is irreducibly complex,
8 meaning whether or not it can be produced by
9 a step-by-step Darwinian process?
10 A. That’s not my area of expertise.
11 Q. And it would also be true that you wouldn’t
12 be qualified to -- I’ll repeat that question.
13 Is it also fair to say that you’re not qualified
14 to give an opinion as to whether the blood
15 clotting cascade is irreducibly compl ex?
16 A. That’s not my area of expertise.
17 Q. And you’re also not qualified to give
18 an opinion as to whether the immune system
19 is irreducibly complex, is that correct?
20 A. That is not my area of expertise.
21 Q. So, ma’am, you’re not qualified to give
22 an opinion as to whether the claims made by
23 intelligent design advocates such as Michael
24 Behe are scientific, is that correct?
25 A. I have relied on the work of established
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1 scientists such as my co-author Paul Gross,
2 and they have a tremendous amount of expertise,
3 and that is what I have relied upon.
4 Q. But in terms of your particular expertise,
5 you’re not qualified to give that opinion, is
6 that correct?
7 A. No, sir, and I have never claimed to be.
8 Q. Ma’am, you’re not an expert in religion?
9 A. No.
10 Q. You’re not an expert in the philosophy of
11 science?
12 A. I’m not a philosopher of science.
13 Q. You’re not an expert in the philosophy of
14 education?
15 A. No. That’s not the area that I practice in
16 as a philosopher, no. Although I did do quite a
17 bit of work on my dissertation with respect to
18 Sidney Hook about that.
19 Q. Ma’am, you’re not a mathematician?
20 A. No.
21 Q. You’re not a probability theorist?
22 A. No.
23 Q. You do not possess formal training in
24 mathematics, is that correct?
25 A. No.
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1 Q. You have no - -
2 A. Well, college math.
3 Q. Certainly. And you have no doctorate in
4 mathematics, is that correct?
5 A. No, my Ph.D. is in philosophy.
6 Q. So, ma’am, you’re not qualified to give an
7 opinion as to whether Dr. Dembski ‘s claim of
8 complex specified information is valid, isn’t
9 that correct?
10 A. That is not my area of expertise and I have
11 not offered opinions on that.
12 Q. Ma’am, this is a concept that he wrote
13 about in a book published by Cambridge
14 University Press, correct?
15 A. The Design Inference, yes.
16 Q. So you’re familiar with The Design
17 Inference?
18 A. Yes, I know that he’s written that book,
19 uh-huh.
20 Q. And Cambridge University Press is similar
21 to like the Oxford University Press is a peer
22 reviewing academic press?
23 A. Yes.
24 Q. And again the book that Dr. Dembski wrote,
25 The Design Inference, explains his ideas of
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1 complex specified information, correct?
2 A. Well, Dr. Dembski has written that that
3 book does not address the implications of design
4 theory for biology, so -- but that book is a
5 highly technical book that is not within my
6 area of expertise.
7 Q. And that book does discuss the concept
8 of complex specified information, correct?
9 A. Yes, I believe it does.
10 Q. I want to explore your understanding of
11 intelligent design as it relates to the opinions
12 you intend to proffer in this court. Ma’am, is
13 it your understanding that intelligent design
14 requires adherence to the claim that the earth
15 is six to ten thousand years old?
16 A. No, it doesn’t require that, although there
17 are young earth creationists integrally involved
18 in the intelligent design movement.
19 Q. But again your answer is intelligent design
20 does not require adherence to that tenet?
21 A. No, they themselves do not make that a
22 requirement.
23 Q. Is it your understanding that intelligent
24 design does not require adherence to the six day
25 creation event that is a literal reading of the
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1 account in the Book of Genesis?
2 A. No, it does not require that. Intelligent
3 design is a broader type of creationism.
4 Q. But it doesn’t require a literal reading of
5 the Book of Genesis, correct?
6 A. It does not.
7 Q. In fact, it doesn’t require a literal
8 reading of any scripture, correct?
9 A. It does not require a literal reading of
10 scripture, but it is based on scripture.
11 Q. Is it your understanding that intelligent
12 design requires adherence to the flood geology
13 point of view advance by creationists?
14 A. It’s my understanding that it does not
15 require that.
16 Q. Is it your understanding that intelligent
17 design requires the action of a supernatural
18 creator?
19 A. Yes, it is my understanding that it does
20 require that.
21 Q. Is that an assumption that you based your
22 opinions on?
23 A. No, it’s not an assumption. It’s based on
24 statements made by the movement’s leaders.
25 Q. But your understanding that it requires
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1 the actions of a supernatural creator forms a
2 foundation for the opinions you intend to offer
3 in this case, right?
4 A. Yes. Based on the statements of the
5 movement’s leaders themselves.
6 Q. Now, ma’am, you spoke about during your
7 initial examination by Mr. Rothschild this
8 concept of methodological naturalism, correct?
9 A. Yes.
10 Q. And methodological naturalism is a
11 convention that’s imposed upon scientific
12 inquiry, is it not?
13 A. No, it’s not a convention that is imposed
14 upon scientific inquiry. Methodological
15 naturalism is a methodology. It’s a way of
16 addresses scientific questions. It reflects the
17 practice of science that has been successfully
18 established over a period of centuries. It’s
19 not imposed upon science. It reflects the
20 successful practice of science.
21 Q. Well, you would agree it places limits
22 on scientific expl orati on?
23 A. It does place limits on what science can
24 address, that’s correct.
25 Q. Should scientist be allowed to follow the
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1 evidence where it leads or should they be
2 constrained to follow the evidence only where
3 materialism allows?
4 A. Science by its nature and on the basis of
5 its successful practice cannot address questions
6 of the supernatural , and that’s because the
7 cognitive faculties that humans have will not
8 take us beyond the reach of those faculties.
9 And so science is really an intellectually
10 quite humble process. It does not address
11 supernatural claims. It has no methodology by
12 which to do that.
13 Q. And are you aware of a claim advanced by
14 Nobel laureate Francis Crick called “Directed
15 Panspermia”?
16 A. Yes.
17 MR. ROTHSCHILD: Objection, Your Honor.
18 This line of questioning is going well outside
19 what would be relevant to qualifications.
20 MR. MUISE: Your Honor, she’s testified
21 about the methodological naturalism, and I’m
22 just trying to make a searching inquiry as to
23 her understanding of methodological naturalism,
24 and its application in this case is how it’s
25 going to relate to her follow on opinions that
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1 I’m sure Mr. Rothschild is going to try to
2 elicit.
3 MR. ROTHSCHILD: I think what Mr. Muise is
4 doing is getting into a discussion of whether
5 methodological naturalism is a valid
6 methodology, is a representative methodology
7 science or not. It’s a perfectly appropriate
8 question for him to ask Dr. Forrest as were
9 asked of Dr. Pennock, but I’m not sure whether
10 this is getting us in terms of qualification.
11 THE COURT: How does that go, Mr. Muise, to
12 whether or not she’s an expert in the area --
13 MR. MUISE: Your Honor, I think it also goes
14 to the reliability of her follow on opinions
15 that are going to be addressed by this witness.
16 THE COURT: I don’t think it goes to
17 reliability. No, I don’t think it’s close
18 enough to the stated purpose of the witness,
19 at least in part, which is an expert in
20 methodological naturalism. I think we’re going
21 to get afield of that with the question. If
22 she’s otherwise qualified it’s certainly a
23 proper question on cross by you, but I’ll
24 sustain the objection.
25 MR. ROTHSCHILD: Thank you, Your Honor.
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1 MR. MUISE: I have one more question along
2 this line, Your Honor, but I think it goes to
3 sort of the assumption that’s going to be the
4 basis for her opinion that I just wanted to
5 elicit at this point.
6 THE COURT: Well, we’ll see.
7 BY MR. MUISE:
8 Q. Ma’am, is it your understanding that
9 there’s no dispute amongst philosophers of
10 science as to whether methodological naturalism
11 is a proper limitation imposed upon scientific
12 inquiry?
13 A. There may be some dispute among
14 philosophers of science, but there is really,
15 that’s not a question in dispute among the
16 people who do the science, the scientists
17 themselves. That is the way they do science.
18 It reflects the established, the successful
19 practice of science by the scientists
20 themselves.
21 Q. So using methodological naturalism then as
22 a procedural approach to science as opposed to
23 just necessarily a philosophical approach to
24 science?
25 A. It’s not a philosophical approach. It’s
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1 just a fancy term for scientific method. That’s
2 all it is.
3 Q. Do you believe it’s improper for academics
4 such as scientists and philosopher of science
5 to challenge the popular convention of
6 methodological naturalism?
7 A. People are certainly free to discuss it
8 in any way they choose. The fact is that it
9 reflects the only workable procedure that
10 science has at the moment.
11 Q. Ma’am, you consider yourself to be a
12 secular humanist, is that correct?
13 A. I’m affiliated with the secular humanist
14 organization. I don’t usually put a label on
15 myself in that way.
16 Q. Is methodological naturalism consistent
17 with your world view as a secular humanist?
18 A. Yes, it very much reflects what I explained
19 about the pragmatic naturalism of the people
20 John Dewey and Sidney Hook, in whose tradition
21 I place myself.
22 Q. Do you see the theory evolution as a
23 necessary feature of secular humanism?
24 A. It’s not a necessary feature of secular
25 humanism. The theory of evolution is something
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1 that virtually all secular humanists endorse
2 because they have a great deal of respect for
3 the practice of science.
4 Q. You mentioned in your testimony this
5 concept of philosophical naturalism.
6 A. Yes.
7 Q. Is philosophical naturalism consistent
8 with methodological naturalism?
9 A. Could you explain what you mean by
10 consistent, please? Consistent with?
11 Q. Are they related in any way?
12 A. They are not the same thing. One can,
13 for example a scientist uses the naturalistic
14 methodology of science. That does not commit
15 the scientist to the world view of philosophical
16 naturalism. Philosophical naturalism takes you
17 beyond scientific method.
18 Q. So for example Dr. Miller, the fact he
19 testified that he does not, or that he rejects
20 philosophical naturalism would be consistent
21 with the way you just answered --
22 A. Oh, correct.
23 MR. ROTHSCHILD: Objection, Your Honor.
24 This is going again well beyond the
25 qualifications.
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1 THE COURT: Well, she answered the question.
2 I’ll overrule the objection and let the answer
3 stand.
4 Q. Ma’am, does the fact that methodological
5 naturalism might coincide with your secular
6 humanist world view, would that discredit
7 methodological naturalism from consideration
8 by scientists?
9 A. When you say that methodological naturalism
10 coincides with the world view of secular
11 humanism, if I could explain something about
12 that? Methodological naturalism is used by
13 every human being every day. Every human being
14 who has to solve a problem, answer a question,
15 uses it every day. It’s completely
16 noncontroversial, and so it coincides with just
17 about any philosophical position that one might
18 take on the nature of reality. It does not
19 logically entail philosophical naturalism.
20 Q. Ma’am, you testified I believe that your
21 area of expertise is in the nature and strategy
22 of the intelligent design creationist movement,
23 correct?
24 A. That is the subject of my book and a good
25 deal of my published work, yes.
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1 Q. Now, you call it intelligent design
2 creationists, correct?
3 A. Right, yes.
4 Q. Now, describing it as creationists, is that
5 your way to discredit the science of intelligent
6 design without actually addressing the scientist
7 claim?
8 A. Not at all. I use that term because the
9 leaders, the movement’s own leaders have used
10 it. They have used the term creationist
11 themselves.
12 Q. You do not address the scientific claims
13 of intelligent design in your report, correct?
14 A. No, I didn’t address the scientific claims
15 in the report. My book does cover that because
16 my co-author is a scientist himself.
17 Q. Well, you’re going to be testifying today
18 pursuant to your report, is that correct?
19 A. My testimony today is connected to my
20 report, yes.
21 Q. Now, we heard testimony in this case
22 demonstrating that the term evolution can have
23 different meanings. It can simply mean change
24 over time or it could also refer to the theory
25 of evolution, for example natural selection.
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1 Does that comport with your general
2 understanding of - -
3 A. There are various facets to evolutionary
4 theory.
5 Q. Now, isn’t it also true that the term
6 creation has more than one meaning?
7 A. Yes.
8 Q. Could creationism --
9 A. Excuse me, if I could correct that, there
10 are different types of creationism.
11 Q. Well, would you agree that creationism can
12 simply mean an innovative design capable of
13 bringing about biological compl exi ty?
14 MR. ROTHSCHILD: Objection, Your Honor.
15 Mr. Muise cut off his line of questioning on
16 my direct examination because it got into
17 opinion testimony. Now he’s cross examining
18 on the meaning of creationism, and I don’t see
19 how this goes to qualifications.
20 THE COURT: Mr. Muise?
21 MR. MUISE: Again, Your Honor, she used the
22 term intelligent design creation, and this is
23 really going to go to the foundation of the
24 opinions that she’s going to be offering. I
25 think it is related. It’s one thing to elicit
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1 the opinions of creationism. It’s another thing
2 for her to describe what her understanding of
3 that term is and whether or not she considered
4 those various understandings in the opinions
5 that she’s going to be offering.
6 THE COURT: Well, let’s look at it this way.
7 Mr. Rothschild introduced her as an expert on
8 the methodology, on methodological naturalism.
9 We have covered that area. Also the history and
10 nature of intelligent design, of the intelligent
11 design movement, including its creationism
12 origin. Now, if you want to ask what that
13 means, ask it that way I think, rather than get
14 into -- I think the nature of the objection is
15 there are various types of creationism.
16 I think the question likely traipses over
17 into appropriate cross examination if she’s
18 qualified as an expert. I’ll allow you to press
19 on creationism as she uses it and as she defines
20 it. As it relates to her expert report I think
21 arguably that’s within qualifications. I’ll
22 sustain the objection to that particular
23 question. So you’ll have to rephrase it.
24 MR. MUISE: If I may, Your Honor, in part
25 with your explanation, the point I just wanted
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1 to make is that she didn’t use this, she doesn’t
2 define it this way. So it is sort of, it’s
3 contrary to you said it would be okay to ask
4 her what she meant by creationism. My point is
5 to say she didn’t consider this definition of
6 creation, which is sort of the alternative way
7 of asking the same question that you’ve just
8 referred to.
9 THE COURT: What definition?
10 MR. MUISE: The one that I used, Your Honor,
11 an innovative design capable of bringing about
12 biological complexity.
13 THE COURT: Well, if she didn’t use that,
14 again to question her in that way is appropriate
15 cross, assuming that she’s admitted. I say that
16 again. It’s how she uses it, not how she didn’t
17 use it, that’s at issue as it relates to her
18 credentials in my view.
19 MR. MUISE: Then we’ll save that one for
20 cross then, Your Honor.
21 BY MR. MUISE:
22 Q. Dr. Forrest, you claim to be an expert on
23 the so-called Wedge Strategy, correct?
24 A. That’s the subject that I did research on
25 for three and a half years, yes.
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1 Q. And this is reflected in the document The
2 Wedge Strategy, is that correct?
3 A. That’s the title of the document.
4 Q. Now, is it true that that document was
5 purportedly stolen from the office of Discovery
6 Institute?
7 A. According to Dr. Meyer that’s what
8 happened.
9 Q. Did you ever talk to Dr. Meyer about that?
10 A. No.
11 Q. And this document was a fund raising
12 proposal by Discovery Institute, correct?
13 A. That’s the way they have described it.
14 Q. Now, I believe you answered a question to,
15 you answered one of Mr. Rothschild’s questions
16 indicating that you have never interviewed
17 personally any Discovery Institute employee or
18 fellow regarding the nature and strategy of this
19 intelligent design movement that you’re going to
20 be testifying about, is that correct?
21 A. No, I did not.
22 Q. Have you personally interviewed any
23 Discovery Institute employee or fellow regarding
24 any of the claims in your report or what you re
25 going to testify about today?
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1 A. No.
2 Q. Now, in your report you rely heavily on
3 this so-called Wedge Document. Yet you do not
4 rely on Discover Institute’s statement in a
5 document that they drafted called The Wedge
6 Document: So What?, which explain the genesis
7 and the nature of the purpose of the Wedge
8 Document, is that accurate?
9 A. That document was drawn up after my book
10 was published. That was produced quite a
11 while after I did my work.
12 Q. And that was produced though before you
13 wrote your report, correct?
14 A. Before, yes, before I wrote the report.
15 Q. So what is the methodological criteria you
16 use to rely heavily on Discovery Institute’s
17 Wedge Document, but then to disregard Discovery
18 Institute’s own explanation of what the nature
19 and purpose of this document is?
20 A. The Discovery Institute, or the Center for
21 the Renewal of Science and Culture has provided
22 a wealth of written material that I have
23 consulted. I wanted to, if I was going to use
24 that document as a reference point in my
25 research I needed to authenticate it, and I
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1 wanted to find authentication of the document
2 independently of what the people at the
3 Discovery Institute might actually say to me
4 if I had interviewed them. So I found
5 independent verification of its authenticity
6 on their own web site.
7 Q. But again, ma’am, my question is you did
8 not rely at all on the Discovery Institute’s own
9 published written explanation of what the Wedge
10 Document actually is, which would be a primary
11 source document based on your testimony,
12 correct?
13 A. That information came considerably after
14 I had completed my research for the book. I
15 needed independent verification that the
16 document was authentic, and I found it in
17 text on their web site.
18 Q. But, ma’am, the explanation came after
19 you wrote your report in which the --
20 THE COURT: I get the point. Let’s move on.
21 Q. Now, ma’am, as we know you prepared an
22 expert report and a supplemental report for this
23 particular case which is going to serve as the
24 basis for your testimony, is that accurate?
25 A. Correct.
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1 Q. And again it’s the report that’s serving
2 as the basis of your testimony?
3 A. Yes.
4 Q. Not your book?
5 A. The report, which reflects my book
6 actually.
7 Q. With the exception that we just went
8 through?
9 A. Right.
10 Q. Now, I believe you testified on direct that
11 your testimony, your report and your testimony
12 are based in large part on statements that were
13 made by people that you claim to be leaders of
14 the intelligent design movement?
15 A. They’re not people that I claim to be
16 leaders. They are leaders, and they provided
17 a wealth of written material for me to use.
18 Q. And I believe you stated that you consider
19 those statements to be the best evidence of the
20 nature of the intelligent design movement?
21 A. I would take those statements that they
22 make and the materials they produced to explain
23 what they’re doing to be the best evidence of
24 what they’re doing, yes.
25 Q. Except their explanation of Wedge Document,
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1 correct?
2 A. Which was written only in response to
3 chapter 2 of my book.
4 Q. Now, I believe your report, and I believe
5 you also testified here, you indicated that
6 primary data consists of statements by not only
7 the Wedge leaders, but their allies and
8 supporters, is that correct?
9 A. Well, primary data would be statements by
10 the Wedge leaders themselves, things that they
11 have written. That would be what I would
12 consider primary data. Things that are stated
13 by their allies and supporters I would consider
14 secondary data.
15 Q. And you relied on that secondary data to
16 form your opinions that you’re going to offer
17 in this case?
18 A. I relied both on primary and secondary
19 sources.
20 Q. And your focus on these allies and
21 supporters was the focus on the religious
22 alliances and association of members of
23 the intelligent design, correct?
24 A. That’s correct.
25 Q. So is it your opinion that because
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1 intelligent design proponents associate with
2 religious organizations that this shows that
3 the scientific claims that they’ve made aren’t
4 science?
5 MR. ROTHSCHILD: Objection, Your Honor.
6 Again this has nothing to do with
7 qualifications. It’s perfectly appropriate
8 cross examination of the opinions that
9 Dr. Forrest is going to deliver, but we’re
10 spending a lot of time here doing just that
11 which Mr. Muise or Mr. Thompson will have the
12 opportunity to do after I have asked her about
13 her opinion.
14 THE COURT: The operative word I think
15 in your question was opinion that may be
16 troublesome. But I’ll let you speak to it,
17 Mr. Muise.
18 MR. MUISE: Your Honor, as we intend to show
19 during this voi r dire that she selectively takes
20 statements and focuses on certain alliances to
21 the exclusion of all the scientific evidence,
22 all the scientific work, to reach her subjective
23 conclusion, and I’m just going through to
24 demonstrate that her methodology is
25 fundamentally flawed.
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1 THE COURT: Well, an expert’s conclusion is
2 necessarily subjective. Can we all agree on
3 that?
4 MR. MUISE: To some point, Your Honor. I
5 mean, that’s the whole point of the Daubert is
6 to understand that there’s some sort of a
7 methodology that is a reliable methodology that
8 is a reliable methodology that you’re going to
9 apply.
10 THE COURT: Well, even if I open the gate
11 under Daubert for an expert, that expert is
12 testifying in a subjective fashion, isn’t it?
13 Or she?
14 MR. MUISE: Your Honor, if you have a
15 historian who for example only looks at
16 statements from Southerners and they conclude
17 that the South won the Civil War, I think you
18 could say that there’s a problem with the
19 reliability of that testimony.
20 THE COURT: Admittedly there is a somewhat
21 indistinct line here, and I understand that
22 you’re trying not to cross the line. This is
23 a hybrid expert. This expert I think we can all
24 agree doesn’t fit within the express criteria in
25 Daubert. You’d have to struggle to go through
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1 the multipart test and to apply it to this
2 particular expert. However, some of your
3 questions go to weight quite clearly, and it
4 is undoubtedly going to be your purpose during
5 cross examination, if the witness is admitted,
6 to talk about what’s not included or what is
7 misunderstood or was never considered as it
8 relates to her report.
9 Now, it does cross the line on
10 qualifications as it gets to the comprehensive
11 nature of what she looked at and didn’t look at,
12 and I would ask that you restrict your questions
13 to that. Now, you have questioned her in that
14 area for example. The subsequent statement
15 which quite clearly at least from the court’s
16 standpoint came out after her book as it related
17 to the Wedge Strategy, I think that that’s
18 appropriate for the purpose of credentials and
19 for the purpose of voir dire, but I think your
20 most recent question did cross that admittedly
21 indistinct line, and I’ll sustain the objection.
22 BY MR. MUISE:
23 Q. Ma’am, again looking at the data that you
24 relied on, is it true that the data with regard
25 to the associations was focused on associations
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1 with religious organizations and religious
2 affiliations?
3 A. Those are not their only associations.
4 Those are important ones, but those are not
5 the only ones, and I did look at some others.
6 For example, they formed associations with
7 members of parts of education for example.
8 So there are others. The religious ones are
9 important. They’re not the only ones.
10 Q. And the focus for the purpose of your
11 opinions was the focus on those religious
12 organizations, is that correct?
13 A. As the movement describes itself in looking
14 at the associations which they themselves have
15 cultivated, that was information that I needed
16 to examine and to include in my research and my
17 writing. It’s an important part of what they
18 do, and it actually is a stated part of their
19 strategy to form those associations.
20 Q. Now, ma’am, it’s true this Wedge Document
21 serves as the foundation for a majority of your
22 opinions, is that correct?
23 A. It’s a reference point. It’s a reference
24 point for my work. It certainly is not the
25 entire foundation of it, but it’s an important
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1 reference point.
2 Q. You have no evidence that the board members
3 of the Dover area school district had any
4 knowledge of this Wedge Document, is that
5 correct?
6 A. I have no evidence of that.
7 Q. And in your deposition you were asked
8 whether you believe that the people who prepared
9 the policy at issue in this case were acting
10 under the guidance of the so-called intelligent
11 design movement, and you answered, “I have no
12 way to know.” Is that correct?
13 A. That’s correct. I have no knowledge that
14 they were acting in that fashion.
15 Q. Ma’am, you’re a member of the National
16 Center for Science Education?
17 A. I’m on their board of directors and I’m
18 also a member.
19 Q. And member of the ACLU?
20 A. Correct.
21 Q. You’re a member of the National Advisory
22 Council of Americans United for the Separation
23 of Church and State?
24 A. Yes, that’s correct.
25 Q. And you’re a member of the New Orleans
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1 Secular Humanist Association?
2 A. That’s correct.
3 Q. And that association is affiliated with the
4 Council of Secular Humanists?
5 A. That’s correct.
6 Q. Now, ma’am, you said your opinions are
7 going to be based in large part on this primary
8 source data, which I believe you described as
9 statements of certain proponents of the
10 intelligent design?
11 A. The writings of the proponents of
12 intelligent design.
13 Q. Now, prominent scientists have made
14 non-scientific claims about Darwin’s theory
15 of evolution. That’s true, correct?
16 A. Could you give me an example of that,
17 please?
18 Q. Certainly. Richard Dawkins, you know who
19 he is, correct?
20 A. Yes.
21 Q. A prominent biologist and Darwinian
22 supporter?
23 A. Yes.
24 Q. Wrote a book called The Blind Watchmaker?
25 A. Yes.
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1 Q. And you cite this book in your report,
2 correct?
3 A. Yes. I cite many things in my report.
4 I’m sure it’s in there somewhere.
5 Q. I believe it’s actually on page 17 at
6 footnote 63?
7 A. Yes, I have a couple of hundred footnotes.
8 Q. And in your report you claim this book is
9 “considered a classic popular explanation of
10 evolution theory.”
11 A. Yes, it is.
12 Q. Now, in this book Dawkins claims that,
13 “Darwin made it possible to be an intellectually
14 fulfilled atheist.” Are you aware of that?
15 A. Yes, he does make that statement.
16 Q. Are you aware that the Council for Secular
17 Humanists gives out an award for the humanist of
18 the year?
19 A. Humanist of the year? Yes, it’s an award
20 they give out.
21 Q. And richard Dawkins received that award in
22 1996?
23 A. I’m not specifically aware of that, but --
24 Q. You’re aware that in his acceptance speech
25 he stated, “Faith is one of the world’s great
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1 evils, comparable to the smallpox virus but
2 harder to eradicate.”
3 A. I don’t have any knowledge of that speech.
4 Q. Do you agree with that statement?
5 A. Would you repeat it, please?
6 Q. “Faith is one of world’s great evils,
7 comparable to the smallpox virus, but harder
8 to eradicate.
9 A. No, I don’t agree with that.
10 Q. Do you know who Stephen J. Gould, the late
11 Stephen J. Gould was?
12 A. Yes, a very well known paleontologist.
13 Q. From Harvard University?
14 A. Right. He’s deceased.
15 Q. Correct. And he claimed, “Biology took
16 away our status as paragons created in the image
17 of God,” and, “Before Darwin we thought that a
18 benevolent God had created them.” Are you aware
19 that he made those claims?
20 A. Yes.
21 MR. ROTHSCHILD: Your Honor, I’m going to
22 object to this line of questioning. It has
23 nothing to do with qualifications.
24 MR. MUISE: Your Honor, again it’s going to
25 go to the methodology that she’s applying in
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1 this case. She’s saying she’s rely on primary
2 statements of individuals, of intelligent design
3 movement leaders to reach her opinion.
4 MR. ROTHSCHILD: I’m sure the --
5 THE COURT: Let Mr. Muise finish.
6 MR. MUISE: I’m going to demonstrate that
7 you’ve got supporters of the Darwinian theory of
8 evolution making non-scientific claims, but that
9 does not go to the scientific nature of the
10 underlying claims that they’re making. It goes
11 to the heart of what she -- what they’re trying
12 to propose her and offer as an expert, it goes
13 right to the heart of the methodology that she’s
14 applying in this case.
15 THE COURT: Well, the essential point that
16 you’re attempting to make I assume by your
17 questioning is that things were left out.
18 MR. MUISE: Not necessarily that things were
19 let out, but that the whole methodology is
20 unreliable that she’s applying here.
21 THE COURT: Well, why was it unreliable?
22 Because there were certain things, areas,
23 quotations, treatises that were not considered
24 or were left out of the analysis? Isn’t that
25 the point that you’re trying to make?
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1 MR. MUISE: Well, I think the point is to
2 show the fallacy of --
3 THE COURT: But you didn’t answer my
4 question. You are attempting to show it appears
5 by your questions that the witness, the proposed
6 expert witness does not cite or therefore
7 presumably didn’t consider certain statements
8 that are not in her report or certain activities
9 by individuals you’re naming in your cross
10 examination. Isn’t that what you’re doing?
11 MR. MUISE: I am asking those questions,
12 Your Honor, to set up the question regarding the
13 methodology that she employed. So it’s sort of
14 a necessary predicate to get to the question
15 regarding the methodology that she employed in
16 this case.
17 THE COURT: I think we’re going to make
18 this unduly difficult, and this could go on
19 endlessly. Let’s break it down again. Do
20 you or do you not controvert at this stage
21 that the witness is an expert on methodological
22 naturalism?
23 MR. MUISE: Your Honor, I would say no.
24 In fact, she stated specifically she’s not an
25 expert in the philosophy of science. This deals
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1 directly with that. She said it’s a method
2 employed by scientists. She is not trained as
3 a scientist. She has no scientific claims. She
4 is using this as imposing some sort of broader
5 world view, and you can look specifically at how
6 she’s approaching her attack of intelligent
7 design is on the non-scientific claims made by
8 scientists, and she doesn’t even address any
9 of the scientific claims. So with terms of
10 methodology, she’s a philosopher. She’s not
11 a philosopher of science and she’s not a
12 scientist. Methodological naturalism is a
13 philosophy imposed on science.
14 MR. ROTHSCHILD: Your Honor?
15 THE COURT: Let’s take just that portion
16 of it.
17 MR. ROTHSCHILD: Her dissertation is about
18 she’s a naturalist and she is intimately
19 familiar with pragmatic naturalism and
20 philosophical naturalism and mythocological
21 naturalism. She is not trained as a philosopher
22 of science, but interpreting these areas are at
23 the core of her work. It’s what she writes
24 about. If you examine her curriculum vitae,
25 she has written on this subject, not just about
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1 creationism and intelligent design, but about
2 the issues of naturalism generally.
3 THE COURT: Well, here’s -- and then the
4 further purpose stated by Mr. Rothschild is the
5 history as I said earlier and nature of the
6 intelligent design movement, including its
7 creationism origins. Now, if I understand your
8 question, Mr. Muise, correctly, and I’m not sure
9 that I do, but your concern, you don’t want her
10 qualified at all, I recognize that, but your
11 particular concern goes to her bona fides as
12 they relate to a scientific background. Is that
13 a fair statement?
14 MR. MUISE: That’s part of it, Your Honor,
15 because she does make claims in her report. I’m
16 not sure how she’s going to say initially she
17 doesn’t believe intelligent design is science,
18 but yet she has no scientific knowledge for
19 that.
20 THE COURT: I understand.
21 MR. MUISE: The other point is that, I mean
22 this is going to cause the court to really go
23 off after red herrings. She’s focusing on
24 non-scientific claims, and as I was intending to
25 bring out further as Dr. Miller testified,
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1 sci enti sts often make non-scientific claims.
2 That does not undermine the science that they’re
3 doing, and that’s the point I’m making by
4 bringing up Richard Dawkins, Stephen J. Gould,
5 and the others that I’m going to bring up, and
6 it’s a fundamental flaw.
7 There’s two flaws. There’s the fallacy of
8 the ad hominem which is going to apply here and
9 the fallacy of the genetic that she’s going to
10 apply here, and that methodology has no basis
11 for the issues in this case. She’s doing ad
12 hominem attacks against certain members. She
13 excludes altogether their scientific writings,
14 and to present this to this court so that it can
15 make a determination whether intelligent design
16 is science or not, Your Honor, I lust think it
17 is not expert opinion that is worthy of any of
18 the issues that are in this case.
19 THE COURT: Mr. Rothschild is eager to
20 respond.
21 MR. ROTHSCHILD: I am, Your Honor. We are
22 not suggesting that Dr. Forrest is here to
23 address the purported scientific claims of
24 intelligent design. We put together a very
25 complementary expert team which includes
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1 scientists, scientist philosophers, as well as
2 theologians and experts on teachings, and
3 someone who has studied the intellect, the
4 intelligent design movement.
5 The core question here, the question of
6 whether intelligent design is science, is a very
7 important question in this trial, but the core
8 question is is intelligent design a religious
9 proposition, and it is on that sublect that
10 Dr. Forrest is extremely qualified based on all
11 the empirical research she has done. If we were
12 to suggest that she could answer Professor
13 Behe’s claim for irreducible complexity,
14 Mr. Muise would rightfully cross examine her
15 and have her disqualified on that sublect.
16 That’s not what she’s here to do.
17 THE COURT: Well, I believe that Mr. Muise’s
18 concern as I read the report, that the report
19 may cross into the scientific realm and may
20 transcend the stated qualifications of this
21 expert based on her co-author for example, based
22 on the examination of other individuals. I
23 think that that’s a valid concern as stated by
24 him. Now, I see this witness I will tell you
25 based on what I have thus far perceived as a
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1 proper expert on methodological naturalism,
2 despite Mr. Muise’s objection.
3 I don’t think that it’s essential to
4 that that she be qualified generally in the
5 scientific area. I think that her credentials
6 and experience would allow her to testify in
7 that area as an expert. The stated purpose, the
8 history and nature of the intelligent design
9 movement, and having read the report obviously
10 I think is a proper area for her to testify in.
11 I’m not going to prevent further
12 questioning on this, but I’ll tell you based on
13 what I have seen that I think it is, that she’s
14 certainly qualified to do that by her scholarly
15 work by the time spent studying the intelligent
16 design movement. Now, within that area there
17 may be portions of the report and they may
18 generate testimony that is objectionable, and
19 I am not preventing objections in those
20 particular areas, and in particular as they
21 relate to science.
22 So that would not disqualify her generally
23 as an expert, and to move this along, if I admit
24 her generally so that she can give a historical
25 panoply, that is certainly well within the realm
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1 of possibility that we’ll get objections as they
2 relate to areas that are not necessarily
3 historical in nature. And the questions that
4 you asked with respect to the areas not
5 considered, it’s very difficult on voir dire
6 as it relates to an expert and, you know, I
7 view this expert not necessarily as a scientific
8 “expert” but as I’ve used the term hybrid on a
9 couple of different occasions to some degree,
10 this witness is a historian.
11 I find that she may aid the court, but it
12 certainly goes to weight and it’s certainly
13 appropriate cross examination concerning what
14 she did not consider, and I think we’re now
15 going a little bit afield and you’re getting
16 into that. I think that that allows to admit
17 her for these purposes and to not inhibit the
18 defense on cross examination, as it goes to what
19 was considered and not considered, strikes an
20 appropriate balance, and we ought not get unduly
21 hung up here on the qualifications stage.
22 This is a bench trial. I understand that
23 I’m going to hear additional testimony. I
24 understand in particular I’m going to hear
25 testimony from the defense on the scientific
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1 claims as they relate to intelligent design.
2 So the gate keeping function of Daubert as you
3 well know, although it’s not limited by its
4 terms to jury trials, but it is much more
5 important, and you’ll have to trust that the
6 court can separate this out.
7 So you can proceed with your voir dire
8 questioning, but those are my general thoughts
9 on this witness. I do understand your concern,
10 but I don’t see those concerns as being
11 sufficient that I would prevent this witness
12 from testifying. Now, I’ll rule explicitly
13 after you finish your voir dire, but I hope that
14 gives you some guidance, and you may proceed.
15 MR. MUISE: Thank you, Your Honor, and if
16 I may well, note Mr. Rothschild mentioned about
17 her testimony regarding religion, and as she
18 testified in voir dire she does not have
19 expertise in religion. So that’s another
20 area that she has identified she doesn’t have
21 expertise.
22 THE COURT: Well, that may allow for
23 parti cul arly precise and clinical either
24 objections or points to be made on cross
25 examination, but again I don’t think it
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1 generally disqualifies her.
2 MR. MUISE: Your Honor, if I may indulge
3 the court in one further inquiry, because the
4 other component as you know that we have a lot
5 of concern with is the 703 issue that’s
6 associated with her testimony, and all of these
7 statements, which is the reason for the line of
8 inquiry that I was pursuing with regard to
9 non-scientific claims by sci enti sts with a
10 different world view no doubt is that her
11 testimony, there’s not way to unravel all
12 those statements that she has put in her expert
13 report to show which are the ones that are
14 inappropriate and which are the ones that might
15 very well be appropriate to whatever the inquiry
16 is.
17 THE COURT: Well, what makes them
18 inappropriate?
19 MR. MUISE: Well, You have hearsay on top
20 of hearsay. You have the fact that she’s, you
21 know, just disregarding, one of the main things
22 is the sources that she has chosen, which is
23 some of the questions are going to get into,
24 articles written by Dr. Dembski , he holds three
25 Ph.D.’s, a theologian, a philosopher, a
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1 mathematician. She cites from the philosophy,
2 theology, but not from the math, and concludes
3 look, it’s philosophy and theology, it’s not
4 science. But there’s no way to unravel those --
5 THE COURT: Well, you’re getting into the ad
6 hominem attack issue that you raised earlier.
7 You wouldn’t gainsay that some hearsay may be
8 admissible under 703 as part of an expert
9 report, would you?
10 MR. MUISE: No, and I perfectly understand
11 that it is as long as it’s proper.
12 THE COURT: What’s proper?
13 MR. MUISE: Proper is one that would
14 demonstrate some measure of reliability and
15 trustworthiness to actually support the claim
16 that the witness wants to testify to.
17 THE COURT: And the whole purpose of my
18 ruling on the motion in limine is to allow you
19 to reserve an objection as it relates to any
20 particular statement that’s made. Now, it may
21 be torturous to go through it that way, but
22 that’s the only way I know how to do it. So
23 I can’t, I’m not going to give a blanket
24 prohibition and say that hearsay is inadmissible
25 generally.
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1 On the other hand there may be a statement
2 that for example, and I’m not saying it would
3 be, but hearsay on hearsay, or that it would be
4 taken out of context or particularly unreliable,
5 you’ve got the opportunity to press on that or
6 to object. So I’m not preventing you from doing
7 that by admitting her. The purpose of admitting
8 her as an expert does not mean to tie this up
9 again, or to attempt to tie it up, that part and
10 parcel every portion of this report can come in
11 in testimony.
12 It by no means indicates that, and you
13 reserve any well placed exceptions, but we’re
14 going to be all morning on qualifications if
15 we’re not careful. I think to some degree you
16 see where I’m going, and I think that this is
17 it’s a difficult area for counsel, it’s a
18 difficult area for the court, because this is
19 not, if there is such a thing as a typical
20 expert, this is not a typical expert. This is
21 an area that is blazing new territory, and we’re
22 going to have to do the best we can with it, and
23 I think the best way is to admit this witness
24 for the purposes stated, however to allow the
25 defense abundant latitude to object if it gets
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1 into, as her testimony gets into particular
2 portions of the report.
3 MR. MUISE: Your Honor, I don’t know if
4 we’re reaching the point in time in the morning
5 where it might be appropriate for a break,
6 because I wouldn’t mind to have a moment to
7 consult with co-counsel, and may we just cut
8 off the voir dire and then proceed with --
9 THE COURT: I think that’s probably well
10 taken. Why don’t we do that, and then I’ll
11 hear you -- well, I’ll allow you to -- well,
12 I’ll give you some limited opportunity to
13 complete your voir dire when we come back, but
14 I want to move through it. I think we’ve got
15 to cut to the chase here. We’ve been at this a
16 while. We’ll take about a 20-minute break.
17 I’ll give you limited opportunity for additional
18 voir dire, I’ll hear your objections if you have
19 additional objections, and then we’ll make a
20 determination on the record with respect to
21 admitting this witness and her testimony for
22 the purpose stated by Mr. Rothschild. So we’ll
23 be on break for about 20 minutes.
24 MR. MUISE: Thank you, Your Honor.
25 (Recess taken at 10:12 a.m. Court resumed
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1 at 10:41 a.m.)
2 THE COURT: Be seated, please. We’re back
3 on the record. Mr. Muise, do you have
4 additional questions on voir dire?
5 MR. MUISE: We have a few more, Your Honor,
6 and we’re going to be wrapping up it in short
7 order.
8 THE COURT: All right.
9 BY MR. MUISE:
10 Q. Ma’am, based on what you testified to
11 earlier this morning, it’s clear the testimony
12 you intend to offer this afternoon is going to
13 be based in large part on statements made by
14 certain intelligent design proponents, is that
15 accurate?
16 A. It’s based on my consultation of their
17 writings and things about them in which they
18 are quoted.
19 Q. Ma’am, do you agree with Dr. Miller’s
20 testimony that not everything a scientists
21 says is science?
22 A. Scientists make lots of statements
23 sometimes when they’re speaking not as
24 scientists, but as just people.
25 Q. In the testimony you intend to offer this
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1 morning and this afternoon, ma’am, how will this
2 court know when you’re referring to scientific
3 claims made by intelligent design and
4 phil osophi cal or theol ogi cal claims made
5 intelligent design proponents?
6 A. That sounds like it would depend on the
7 question. The question would have to specify
8 and then I would have to specify.
9 Q. Isn’t it true in your report you’ve made no
10 effort to distinguish these sorts of claims?
11 A. I’m not exactly sure, I’m sorry, what
12 you’re asking me.
13 Q. Well, isn’t it clear in your report, and
14 I’m assuming then your subsequent testimony
15 today, does not make clear the distinction
16 between religious motivations of some
17 intelligent design proponents, the religious
18 implications of intelligent design, and
19 intelligent design as science, isn’t that
20 correct?
21 A. I look at the nature of intelligent design
22 in the intelligent design movement. That
23 includes a number of things. It includes most
24 basically the substance of the movement itself,
25 the essence of what it is, but also involves
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1 motivations of the people who are carrying out
2 this movement and the goals that they have. So
3 I look at all of it, most basically the nature
4 of intelligent design and the movement that’s
5 being used to carry it out.
6 Q. But you don’t address the scientific claims
7 of intelligent design, for example irreducible
8 complexity or complex specified information, is
9 that correct?
10 A. That’s not what I was called upon to do in
11 my report.
12 Q. So is it accurate to say your focus is on
13 the phil osophi cal and theol ogi cal claims made by
14 intelligent design proponents?
15 A. Yes. If I may say, in my book we do look
16 at the scientific claim. My co-author is a
17 scientist, so I have some source of expertise
18 to draw from whenever I need to address that,
19 but that’s not my primary area.
20 Q. Again, ma’am, you’re testifying as to your
21 report, not your book, correct?
22 A. Right.
23 MR. MUISE: Your Honor, we have no further
24 questions, and we move to exclude this witness
25 from testifying as an expert in this case.
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1 MR. ROTHSCHILD: Could I ask one question on
2 redirect of voir dire?
3 THE COURT: You can, and then we’ll hear
4 argument on qualifications. Go ahead.
5 REDIRECT EXAMINATION ON QUALIFICATIONS
6 BY MR. ROTHSCHILD:
7 Q. Dr. Forrest, is it your view, your opinion,
8 that intelligent design is at its core a
9 phil osophi cal and theol ogi cal claim?
10 A. It is my view that at its core intelligent
11 design is a religious belief.
12 MR. ROTHSCHILD: No further questions on
13 voir dire, Your Honor.
14 THE COURT: Any recross on qualifications?
15 MR. MUISE: No, Your Honor.
16 THE COURT: All right. So you object to the
17 expert’s testimony for the purposes stated by
18 Mr. Rothschild, and we stated and restated those
19 purposes. So there’s no need to do that at this
20 point. I’ll allow you to expand on that
21 argument if you like.
22 MR. MUISE: Your Honor, this last question
23 that he just proposed to her she said during the
24 voir dire when I asked her if she had any
25 expertise in religion, she said no. She has
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1 apparently tracked the nature and the history
2 of this so-called intelligent design movement.
3 She can’t address the scientific claims of this.
4 The issue at the heart of this case is whether
5 or not intelligent design is science.
6 THE COURT: As framed by you.
7 MR. MUISE: Well, Your Honor, I think their
8 claim that it’s not science. She’s made no
9 efforts to address the science component of it,
10 because she can’t. She has no expertise. She
11 has focused on the philosophical and theological
12 claims of proponents of intelligent design.
13 THE COURT: Well, the problem with that is
14 that it is an issue to be sure, but another
15 issue, and I understand that they work hand
16 in glove in some cases, these issues, is the
17 religious underpinnings of, or the alleged
18 religious underpinnings of the intelligent
19 design movement as cast by the witness. Why
20 isn’t she competent to testify as to that?
21 MR. MUISE: Your Honor, again the religious
22 underpinnings of William Dembski, who’s a
23 theologian and a philosopher in addition to a
24 mathematician, is no more relevant than the
25 interrelated underpinnings of Richard Dawkins
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1 to say whether or not evolution is --
2 THE COURT: I might agree with that, but
3 that goes to what I said earlier, Mr. Muise,
4 which is that you may have objections as they
5 relate to specific portions of her testimony,
6 and I restate, because I think it needs to be
7 restated, that nothing that I do in terms of
8 admitting this expert, assuming that I admit
9 her, would prevent you from doing that. But
10 to parse out portions of a report that may be
11 objectionable in that way doesn’t help you in
12 terms of her admissibility generally as an
13 expert. We’re talking about two different
14 things. So what other arguments do you want to
15 make on that point?
16 MR. MUISE: Again, Your Honor, as
17 indicated from the last question, just the
18 interrelationship, there’s no way to separate
19 out those objectionable claims from what she’s
20 going to be testifying to. That is in part and
21 parcel of what she’s going to be opining is
22 relying on those sorts of objectionable claims,
23 these philosophical and theological statements
24 of proponents.
25 And so the fact that they’re so
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1 intertwined, there’s no way that this court or
2 even us sitting here when she makes a particular
3 claim can parse out what is the basis, the
4 material that she’s relying on to make that
5 claim, and those materials are objectionable
6 and undermine the reliability, and if I may just
7 make one other - -
8 THE COURT: Well, the materials themselves
9 may constitute hearsay. We’ve already been down
10 that path. 703 doesn’t exclude hearsay. In an
11 effort to be fair I said the materials had to
12 be brought in in part so that we can assure
13 ourselves that you’re given the fair opportunity
14 to discern whether or not, and I’m fairly
15 certain you did this beforehand, and so it’s
16 principally for my benefit to see whether or not
17 the statements are taken out of context, which
18 would be one way to measure that, particularly
19 when you’re parsing out, using that word again,
20 a particular statement, and I’m perfectly
21 willing to do that on an objection from you.
22 But to say that this witness, who is engaged
23 in a scholarly exercise and has produced a
24 published work, that she can’t testify generally
25 subject to well placed objection on the history
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1 of intelligent design as it arose, I’m having
2 difficulty seeing why she can’t.
3 MR. MUISE: And just a couple of more points
4 to that, Your Honor. With regard to the
5 context, that was the point of some of my last
6 questions, because if the context is a
7 phil osophi cal or a theol ogi cal claim made by a
8 proponent, that is the context that makes it
9 irrelevant, and that’s the point.
10 THE COURT: Do you mean as to their personal
11 beliefs?
12 MR. MUISE: That’s correct, Your Honor.
13 THE COURT: Well, and it has to be tied to
14 the -- we’re talking in the abstract. A mere
15 statement of faith by a particular individual
16 standing alone, not tied in some way to an
17 analysis of the, not just an analysis but not
18 tied to that individual’s work or works,
19 treatises, published works as they relate to
20 intelligent design, that may be indeed
21 objectionable. I’m not preventing that.
22 And this report may have instances of that.
23 But again I don’t think it disqualifies the
24 witness as an expert.
25 MR. MUISE: Just two last -- well, it’s
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1 related, but one last point I guess, Your Honor,
2 is that as she testified there’s no evidence
3 that anyone in the school board knew anything
4 about this Wedge Document which forms the
5 foundation of her opinion, nor that any person
6 on the Dover area school district was aware of
7 or operating under the guidance of this
8 conspiratorial intelligent design movement
9 that’s somewhere operating out there.
10 THE COURT: But that’s weight and relevance.
11 That’s not expert qualifications, is it?
12 MR. MUISE: Well, again, Your Honor, I think
13 it’s more than just the qualifications. There’s
14 a reliability question that’s associated with
15 this 703 --
16 THE COURT: No, the purpose then would
17 be effect, I think, from the plaintiff’s
18 standpoint. Having admitted the testimony,
19 you of course can argue that for the effect
20 prong perhaps, for example, and not the purpose
21 prong, and the failure to tie the matters
22 testified to to the individual school board
23 members makes the testimony irrelevant and that
24 it shouldn’t be considered by the court. But
25 we’re not there, and we’re not in your case and
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1 I don’t think that that goes to qualifications.
2 So you’re morphing your qualifications argument
3 into a relevancy argument, and I don’t think
4 that’s appropriate at this point.
5 MR. MUISE: Thank you. No further argument,
6 Your Honor.
7 THE COURT: I’m going to admit the expert
8 then, again subject to timely objections by
9 the defense, for the purpose stated by
10 Mr. Rothschild, which is an expert on
11 methodological naturalism and the history
12 and nature of the intelligent design movement,
13 and Mr. Rothschild, you may proceed.
14 DIRECT EXAMINATION ON EXPERT TESTIMONY
15 BY MR. ROTHSCHILD:
16 Q. Good morning again, Dr. Forrest?
17 A. Good morning, again.
18 Q. Do you have an opinion about whether
19 intelligent design is a form of creationism?
20 A. Yes.
21 Q. And what is that opinion?
22 A. My opinion is that it is creationism.
23 Q. The district in this case has argued
24 that creationism is limited to a literal
25 interpretation of the account of Genesis from
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1 the Old Testament of the Bible. Do you agree
2 that that’s a proper definition of creationism?
3 A. No, I don’t agree.
4 Q. What do creationists themselves say on that
5 subject?
6 A. Creationists themselves recognize
7 variations among themselves. They recognize
8 the young earth position. They recognize the
9 old earth position. This is quite well known
10 among creationists themselves.
11 Q. Do you have an opinion about whether
12 intelligent design is religious in nature?
13 A. Yes.
14 Q. And what is that opinion?
15 A. That it is essentially religious.
16 Q. On what do you base your opinion that
17 intelligent design is a form of creationism?
18 A. On the statements by the movement’s own
19 leaders, they have at times referred to it
20 that way.
21 Q. Anything else?
22 A. Yes. Their rejection of evolution in favor
23 of a supernatural intervention in the process of
24 nature and in favor of special creation of life
25 forms.
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1 Q. Has your review of the history of the
2 writing of Of Pandas and People confirmed
3 your conclusion that intelligent design is
4 creationism?
5 A. Yes.
6 Q. On what do you base your opinion that
7 intelligent design is a religious proposition?
8 A. On the statements of its leaders. They
9 have so defined it.
10 Q. We’re going to go into those statements
11 in some detail, but has Phillip Johnson made
12 statements to that effect?
13 A. Yes, he has.
14 Q. Matt, could you pull up Exhibit 328? Do
15 you recognize this document?
16 A. Yes.
17 Q. What is it?
18 A. It is entitled “Starting a Conversation
19 About Evolution.” It is a review of a book by
20 Dell Ratzsch. This is written byPhillip
21 Johnson.
22 Q. And Dr. Forrest, have you in preparation
23 for your testimony highlighted passages of some
24 of the documents we’re going to use as exhibits
25 today?
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1 A. Yes, I have.
2 Q. Did you do that for this exhibit?
3 A. Yes.
4 Q. Matt, could you go to the highlighted
5 statement in this exhibit? And Dr. Forrest,
6 could you read that statement into the record,
7 using quotes to indicate when you’re quoting
8 from the document?
9 A. Yes.
10 MR. MUISE: We object to the statement as
11 hearsay.
12 THE COURT: Well, you’re going to have to
13 do better than that.
14 MR. MUISE: Again, Your Honor, it goes to
15 the content. This is not a claim made by, a
16 scientific claim. It’s at best a philosophical
17 theological claim that’s made by somebody that
18 she purports to be an intelligent design
19 proponent, and as she said in direct testimony
20 Phillip Johnson is a lawyer. He’s not a
21 scientist.
22 THE COURT: We’ll have to take it in the
23 context of the entire passage and presume that,
24 meaning I have to see it on the screen, you’re
25 going to have to give me the exhibit.
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1 MR. ROTHSCHILD: Your Honor, it’s exhibit --
2 THE COURT: Why don’t you --
3 MR. ROTHSCHILD: - - 328.
4 THE COURT: That’s helpful to me.
5 MR. ROTHSCHILD: Can I address Mr. Muise’s
6 point?
7 THE COURT: Let me read it first.
8 MR. ROTHSCHILD: Sure.
9 (Brief pause.)
10 THE COURT: What is this drawn from?
11 MR. ROTHSCHILD: This is an article as
12 Dr. Forrest described written by Phillip
13 Johnson.
14 THE COURT: Let me see the title page of
15 that again.
16 (Brief pause.)
17 THE COURT: The objection is overruled.
18 BY MR. ROTHSCHILD:
19 Q. Could you read that passage into the
20 record, please?
21 A. Yes. “My colleagues and I speak of
22 theistic realism, or sometimes mere creation,
23 as the defining concept of our movement. This
24 means that we affirm that God is objectively
25 real as creator, and that the reality of God
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1 is tangibly recorded in evidence accessible to
2 science, particularly in biology.”
3 Q. And based on your reading of this article,
4 what is the movement that Mr. Johnson was
5 referring to?
6 A. He’s referring to the intelligent design
7 movement.
8 Q. This is one example of intelligent design
9 movement leaders’ own statements indicating the
10 religious nature of the proposition?
11 A. Yes.
12 Q. In preparing your expert report and
13 preparing to testify today did you examine
14 prior court cases relating to the teaching
15 of evolution?
16 A. Yes.
17 Q. And why did you do that?
18 A. Because it gives a good understanding
19 of the history of this issue and shows the
20 religious objections to the teaching of
21 evolution in those cases.
22 Q. Was there any opinion that was particularly
23 important to your opinion?
24 A. Yes.
25 Q. And what was that?
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1 A. That was the Edwards vs. Aguillard, 1987
2 United States Supreme Court reading.
3 MR. MUISE: Your Honor, we’re going to
4 object to any testimony related to any court
5 cases or prior decisions. She’s not an attorney
6 in this case. There’s only one legal expert
7 in this courtroom, and it’s the judge, and it’s
8 not this witness.
9 THE COURT: Of course that remains to be
10 seen. What do you have to say about that?
11 MR. ROTHSCHILD: Your Honor, she is not
12 going to discuss this court case. She’s going
13 to discuss it as a historical fact that’s
14 important to the intelligent design movement,
15 including, and this is my -- we’re going to go
16 to this in the next couple of questions, an
17 affidavit presented in that case in support of
18 creation science by Dean Kenyon, the author of
19 Pandas.
20 THE COURT: Well, to the extent that
21 Mr. Muise interposes a protective objection
22 as it may relate to a legal interpretation of
23 the case you’ll not be able to go there, and
24 I’ll sustain the objection on that basis. The
25 questions up to this point with respect to the
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1 existence of the case, the naming of the case,
2 are not objectionable, but I understand I think
3 the basis of your objection is that she can’t
4 legally interpret the case. I’ll hear another
5 objection, I’ll allow you a continuing objection
6 in that vein, but we haven’t gotten to that
7 point yet. You may proceed.
8 BY MR. ROTHSCHILD:
9 Q. What court wrote the opinion in Edwards
10 that you have read?
11 A. The United States Supreme Court.
12 Q. And do you know when the court issued its
13 opinion?
14 A. June 19th, 1987.
15 Q. I’m not asking you to interpret it, but
16 what’s your understanding of what the court
17 ruled in that case?
18 MR. MUISE: Objection, Your Honor.
19 MR. ROTHSCHILD: Your Honor, this is just
20 background.
21 THE COURT: No, I’ll sustain that objection.
22 I think that’s problematic, and I think
23 furthermore the court is capable of
24 understanding that case. So it’s probably
25 a needless question anyway. So let’s move on.
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1 BY MR. ROTHSCHILD:
2 Q. What is the Edwards decision important
3 to the opinions you’re going to give today?
4 A. Because one of the expert witnesses was
5 Dr. Dean H. Kenyon, who is a co-author of
6 Pandas.
7 Q. And did Dr. Kenyon submit an affidavit in
8 support of the teaching of creation science in
9 that case?
10 A. Yes, he did, in 1986.
11 Q. And have you reviewed that affidavit?
12 A. I have.
13 Q. Matt, could you call up Exhibit 418?
14 I apologize, the text is a little hard to
15 read, but do you recognize this document?
16 A. Yes.
17 Q. What is it?
18 A. That’s Dr. Kenyon’s affidavit.
19 Q. And have you highlighted portions of this
20 document that are important to your opinion
21 about intelligent design?
22 A. Yes.
23 MR. ROTHSCHILD: Matt, could you go to the
24 first, could you actually highlight the heading
25 so we can see clearly that that is an affidavit?
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1 I think you need to go down a little -- there
2 we go.
3 MR. MUISE: We object on the basis of
4 hearsay again for any testimony relating to
5 this affidavit, this out of court statement
6 issued by Mr. Kenyon.
7 THE COURT: Again you’re going to have to
8 do better than a basic hearsay objection, and
9 it’s also an affidavit that appears to have been
10 part of the record papers in that case. Now, is
11 it unreliable? Do you have any reason to doubt
12 its voracity?
13 MR. MUISE: Well, Your Honor, again with
14 regard to it’s an affidavit given in a court
15 case that’s not addressing the issue of
16 intelligent design. Again she’s relying on
17 these statements to arrive at an opinion that’s
18 not substantiated by, you know, by weaving this
19 web of these assorted statements throughout the
20 course of the testimony. We’re going to
21 continue to object to any of the statements
22 that keep coming up, Your Honor, and I’ll ask
23 for a standing objection on that, but --
24 THE COURT: Well, I don’t think a standing
25 objection is going to work for you because you
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1 may have particular things you want to say about
2 it. You have to do what you have to do. I’ll
3 overrule the objection.
4 MR. ROTHSCHILD: And, Your Honor, we re not
5 introducing this for the truth of the matter
6 asserted. We’re introducing it for these are
7 Dr. Kenyon s statement, and I’d just like to add
8 for the record the first exhibit that received
9 this kind of objection, Exhibit 328, is already
10 in evidence. It came in through Dr. Pennock,
11 and I’m not sure why Dr. Forrest is being
12 treated differently than other expert witnesses
13 in this case. Could you go to the first
14 highlighted passage, Matt?
15 BY MR. ROTHSCHILD:
16 Q. Could you read that into the record,
17 Dr. Forrest?
18 A. Yes. “Definitions of creation science
19 and evolution. Creation science means origin
20 through abrupt appearance in complex forms,
21 and includes biological creation, biochemical
22 creati on or chemi cal creation, and cosmic
23 creation.”
24 Q. Why is that statement in Dr. Kenyon’s
25 affidavit important to your opi ni on about
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1 intelligent design?
2 A. That statement is important because it
3 reflects the definition in Pandas.
4 Q. And when you say the definition in Pandas
5 what is the term that’s defined the Pandas?
6 A. The term in Pandas is intelligent design.
7 It’s pretty much the same definition here that
8 he’s giving for creation science.
9 Q. And we’re going to look at some of that
10 language in Pandas later, but why don’t we go
11 on to the next highlighted passage. Why don’t
12 you go ahead and read that.
13 A. “Creation science does not include as
14 essential parts the concept of catastrophism,
15 a worldwide flood, a recent inception of the
16 earth or life from nothingness, ex nihilo, the
17 concept of time, or any concepts from Genesis
18 or other religious texts.”
19 Q. Why is that important to your opinion?
20 A. That’s important because it recognizes that
21 there are different types of creationism, that
22 it’s broader than just young earth creationism.
23 Q. And I think we have one more passage
24 highlighted, Matt.
25 A. “Sole alternative to scientific
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1 explanation, it is not only my professional
2 opinion, but that of many leading evolutionists
3 scientists at present and in the past, that
4 creati on science and evol uti on are the sole
5 scientific alternative, scientific explanation,
6 although each includes a variety of approaches.
7 Either plants and animals evolved from one or
8 more initial living form, biological evolution,
9 or they were created, biological creation.”
10 Q. Why is that important?
11 A. That’s important because he’s setting out
12 what is called the dual model, or the two model
13 view of evolution and creation, which means that
14 he considers these the only two alternatives.
15 Q. And why is that significant to the issue
16 of intelligent design?
17 A. That’s significant here because in 1986
18 when Dr. Kenyon wrote this he was also working
19 on Pandas the same year, and the two model
20 approach means that if the idea of evolution
21 is undermined, that leaves creation science by
22 default. It also indicates that since he was
23 working Pandas and that book speaks as an
24 intelligent design theorist, he doesn’t see
25 any significant distinction between the two,
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1 between creation science and intelligent design.
2 Q. I’d like to talk now about the writing of
3 the book Of Pandas and People. When was the
4 book first published?
5 A. 1989.
6 Q. And was there a second published version?
7 A. 1993.
8 Q. Have you prepared a timeline to assist your
9 testimony today on the issue of the creation of
10 Pandas?
11 A. Yes.
12 Q. Matt, could you pull up the timeline
13 and place the Edwards decision and Mr. Kenyon 5
14 affidavit, Dr. Kenyon’s affidavit on the
15 timeline, and then could you also put up the
16 two published versions of Pandas in 1989 and
17 in 1993? What organization created Of Pandas
18 and People?
19 A. The book was created by The Foundation for
20 Thought and Ethics.
21 Q. Who runs that organization?
22 A. The founder and president is Mr. John
23 Buell.
24 Q. And what do you know about him?
25 A. Mr. Buell at one time worked for Campus
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1 Crusade For christ. Then he worked for Probe
2 Ministries, and I believe he left Probe in order
3 to found, to set up The Foundation for Thought
4 and Ethics.
5 Q. And what is Probe ministries?
6 A. Probe Ministries a campus youth ministry.
7 It operates on university campuses.
8 Q. Do you have any knowledge of whether
9 Mr. Buell is a scientist?
10 A. He’s not a scientist.
11 Q. Have you reviewed public filings by the
12 foundation which demonstrate their stated
13 mission or purpose?
14 A. Yes.
15 Q. Matt, could you pull up Exhibit P-12?
16 Do you recognize this document?
17 A. Yes. It’s the articles of incorporation
18 for The Foundation for Thought and Ethics.
19 Q. And Matt, could you highlight the dates on
20 that document? And that indicates that the
21 articles of incorporation were filed in 1980
22 and a follow-up report in 1993?
23 A. Correct.
24 Q. Does this, do these articles of
25 incorporation contain a mission statement
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1 by, or a description of what the FTE does?
2 A. Yes, there is a description.
3 Q. Matt, could you go to the highlighted
4 passage? And Dr. Forrest, could you read the
5 highlighted text under Articles?
6 A. Yes, this is Article 5, “The purposes
7 for which the corporation is formed are, 1)
8 the primary purpose is both religious and
9 educational, which includes, but is not limited
10 to, proclaiming, publishing, preaching,
11 teaching, promoting, broadcasting,
12 disseminating, and otherwise making known
13 the Chri sti an gospel and understanding of the
14 Bible and the light it sheds on the academic
15 and social issues of our day.”
16 Q. Do you consider that to be announcing a
17 religious agenda?
18 A. Yes, I do.
19 Q. Have you seen other documents prepared by
20 The Foundation for Thought and Ethics that
21 confirm that in fact that organization has a
22 primarily religious agenda?
23 A. Yes, I have.
24 Q. Matt, could you pull up Exhibit P-633.
25 Do you recognize this document?
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1 A. Yes.
2 Q. And what is it?
3 A. It is a 1983 publication called The
4 Foundation Rationale.
5 Q. And who publishes this document?
6 A. This is published by The Foundation for
7 Thought and Ethics. The copyright is below
8 the title.
9 Q. And have you highlighted portions of this
10 document - -
11 A. Yes.
12 Q. -- that indicate the religious agenda?
13 A. Yes.
14 Q. And Matt, could you go to the first
15 highlighted portion of the document?
16 MR. MUISE: Your Honor, we object on the
17 basis of hearsay.
18 THE COURT: Are you objecting to the
19 document, reference to the document generally,
20 or to individual parts of the document?
21 MR. MUISE: Well, I understand she’s going
22 to start testifying about individual parts of
23 the document as to Mr. Rothschild’s indication
24 about highlighting certain sections.
25 THE COURT: Before we go further let’s
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1 go back to the first page if I could ask.
2 (Brief pause.)
3 THE COURT: All right, that objection is
4 overruled. You can proceed.
5 BY MR. ROTHSCHILD:
6 Q. Could you go to the first highlighted text,
7 Matt, and could you read this text into the
8 record and explain why it’s important?
9 A. Yes.
10 MR. MUISE: Objection to the reading of this
11 portion of the text into the record on the basis
12 of hearsay.
13 MR. ROTHSCHILD: I’m not offering it for
14 the truth, Your Honor.
15 THE COURT: And the author of this is?
16 MR. ROTHSCHILD: If you can go to the second
17 page, Matt? Charles Thaxton and John Buell, the
18 president and academic editor of the foundation
19 including during the times Pandas was being
20 developed.
21 THE COURT: Do you have any additional
22 objection?
23 MR. MUISE: Your Honor, this is a document
24 that self-authenticates. I mean, it’s fine that
25 he can read that off the document, but there’s
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1 no way to authenticate that this is in fact that
2 document.
3 THE COURT: Well, it doesn’t self
4 authenticate, but that’s not the issue.
5 You know, in a 703 analysis it’s part of
6 an expert report. I think the question is
7 whether you don’t think it’s authentic,
8 not whether it self-authenticates, because
9 we’re not in a strictly, or in a strict
10 hearsay inquiry. We’ve been down this
11 road before, hearsay is admissible. So the
12 self-authenticating part is not it.
13 Now, if you tell me that you don’t think
14 this is real, if you tell you think it was
15 altered, if you tell me that there’s no way for
16 you to know, I might consider that. But you
17 had the report, you’ve had the ability to check,
18 presumably you’ve had the ability to access FTE
19 documents. So if it’s something other than it
20 doesn’t self-authenticate then I’m going to
21 overrule the objection.
22 MR. MUISE: Well, that was in response to
23 just showing his signature. My objection is the
24 hearsay objection that we stated at the front,
25 at the beginning of this testimony. It is the
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1 context. This is a philosophical, a theological
2 claim, not a scientific claim.
3 THE COURT: Well, it is a newsletter to
4 close this loop, but it’s a newsletter that
5 appears to the court to have been published by
6 The Foundation For Thought and Ethics by
7 Mr. Buell . The court knows what Mr. Buell ‘5
8 position is, and Mr. Thaxton. They are, it is
9 not a matter of controversy that they are the
10 publishers of the book Of Pandas and People.
11 It is a work that is roughly contemporaneous
12 with I think the first publishing or at or
13 around the time of the publishing of the book,
14 or at least if predates it, it doesn’t predate
15 it by much, I’m not certain, so I’ll overrule
16 the objection.
17 MR. ROTHSCHILD: Your Honor, one more thing.
18 Mr. Muise is objecting because these are
19 philosophical and theological statements, and
20 I think most of what Dr. Forrest is going to
21 testify about surely are, and it is the
22 plaintiff’s position that intelligent design
23 is at its core a philosophical, theological,
24 religious statement. So that, I mean, that’s
25 what she’s here to testify about, so it’s not
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1 going to be surprising if those kinds of
2 statements are, you know, the core of
3 Dr. Forrest’s testimony today.
4 THE COURT: Well, if you said that to
5 get Mr. Muise to stop making continued
6 objections, you’re probably going to fail.
7 So let’s move on.
8 BY MR. ROTHSCHILD:
9 Q. Dr. Forrest, if you could read that and
10 explainwhy it’s significant to the issue of
11 the foundation mission or agenda.
12 A. Yes. “Many of the same Christian parents,
13 however, are not concerned about the teaching
14 of evolution in public schools. Falling SAT
15 scores and increasing drug abuse, violence,
16 abortion, and homosexual activity among teens
17 are the concerns of these parents. Why the fuss
18 about creation being taught in public schools
19 anyway they ask. As we shall show, there is a
20 fine line of reasoning which usually lies hidden
21 when either the subject of origins or morality
22 is discussed, but which actually ties the two
23 concerns together. Once this reasoning is
24 understood it becomes evident that not only does
25 the exclusive teaching of evolution encourage
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1 our children’s rejection of Judeo-Christian
2 morality, but it also prepares young minds for
3 the reception of religious views which these
4 same parents would find unacceptable.”
5 Q. Before you explain the significance, you
6 did read “it’s a fine line of reasoning.” It
7 didn’t say “a fine line,” just “a line,” so it’s
8 “a line of reasoning,” so --
9 A. Did I insert the word “fine?”
10 Q. You did?
11 A. I’m sorry. “There is a line of reasoning.”
12 Q. If you could explain why is this important
13 to your opinion about the FTE’s agenda?
14 A. This shows that FTE’s objection to the
15 teaching of evolution is it undermines moral
16 values and the religious beliefs of young
17 students.
18 Q. Is that a common theme in the creationist
19 movement?
20 A. That’s found throughout the creationist
21 movement.
22 Q. Matt, I think there’s another passage that
23 Dr. Forrest asked you to highlight.
24 A. “To understand how this can happen we
25 must recognize that there are two basic views
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1 of world and man, theism and naturalism. These
2 are philosophical categories, not religious.
3 They can also be called metaphysical positions,
4 world views, or idea systems. Philosopher or
5 not, we all have such a view. Theism and
6 naturalism are mutually exclusive systems of
7 thought as can be seen from a single
8 distinction. Theism affirms a fundamental
9 creator/creature distinction, whereas naturalism
10 denies this distinction and defines total
11 reality in terms of this world.”
12 Q. Why is that important?
13 A. That’s very important because one of
14 the most common themes in creationism is the
15 rejection of naturalism to juxtapose it as
16 the opposite of theism, and for that reason to
17 see evolution as inherently atheistic.
18 Q. If you could highlight another passage,
19 Matt? Could you read this into the record,
20 please?
21 A. “That’s why Christians, in fact all
22 theists, must insist that whenever origins
23 are discussed, public schools allow the teaching
24 of the evidence for creation alongside
25 instruction in the naturalistic concept of
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1 evolution. If the scientific rationale for
2 both creation and evolution were taught there
3 would be an equality demanded by the symmetry
4 of the two metaphysical views, theism and
5 naturalism. If both are not taught, it is not
6 just the subject of origin that is affected.
7 The whole of naturalistic thought is given
8 privileged status by the state, with the de
9 facto result that young minds are prepared to
10 reject theistic approaches to morality and
11 religion. At the same time they are prepared to
12 receive both moral relativism and the various
13 naturalistic religions such as unity, Buddhism,
14 Scientology, and religious humanism.”
15 Q. Do you have an understanding based on this
16 passage why the authors are advocating the
17 teaching of creationism?
18 MR. MUISE: Objection. That calls for
19 speculation, Your Honor.
20 THE COURT: I’ll sustain the objection.
21 Q. We’ll move on to the next exhibit. Matt,
22 could you pull up Exhibit 566? And do you
23 recognize this document?
24 A. Yes.
25 Q. What is it?
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1 A. It’s a 1995 fund raising letter written by
2 Mr. Buell.
3 Q. And how did this document come into your
4 possession?
5 A. This is one of the subpoenaed document that
6 FTE provided to the legal team, and the legal
7 team provided it to me.
8 Q. And have you highlighted portions of this
9 letter that are important to your opinion?
10 A. I have.
11 Q. Matt, could you go to the first highlighted
12 passage?
13 MR. MUISE: Your Honor, we object on the
14 basis of hearsay.
15 THE COURT: Overruled.
16 Q. This indicates that this is a discussion
17 of the book Pandas?
18 A. Yes. Shall I read that?
19 Q. I’ll read that into the record.
20 “Production of supplemental textbook for
21 biology is already complete. The teachers
22 are now using it in all 50 states. This book
23 Of Pandas and People is favorably influencing
24 the way origins is taught in thousands of public
25 school classrooms.” This is what Mr. Buell is
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1 conveying to his fund raisers?
2 A. Yes. He’s talking about the book Of Pandas
3 and People.
4 Q. Matt, could you go to the next highlighted
5 passage? And could you read that into the
6 record? Go on to the next page where this
7 continues.
8 A. “Our commitment is to see the monopoly of
9 naturalistic curriculum in the schools broken.
10 Presently, school curriculum reflects a deep
11 hostility to traditional Christian views and
12 values and indoctrinates students to this
13 mindset through subtle but persuasive arguments.
14 This is not merely a war over ideas, but over
15 young people and how their lives will be shaped.
16 The current deplorable condition of our schools
17 results in large part from denying the dignity
18 of man created in God’s image. Even junior high
19 students recognize that if there is no creator,
20 as textbooks teach, then there is no law giver
21 to whom they must answer, and therefore no need
22 of a moral lifestyle, much less a respect for
23 the life of their fellow man. The message of
24 the foundation is that this is simply
25 unacceptable.
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1 Q. What do you understand Mr. Buell to be
2 conveying?
3 MR. MUISE: Objection, calls for
4 speculation.
5 THE COURT: Doesn’t the document speak for
6 itself?
7 MR. ROTHSCHILD: I mean, I think based on
8 her overall review of the documents and the
9 history of the writing of Pandas I think
10 Dr. Forrest can give some helpful conclusions
11 about that. I think the document does speak
12 for itself verywell.
13 THE COURT: Well, on that basis I’ll sustain
14 the objection.
15 MR. ROTHSCHILD: Okay.
16 BY MR. ROTHSCHILD:
17 Q. You mentioned that Dean Kenyon was one of
18 the authors of Pandas?
19 A. Yes.
20 Q. And he was the expert in the Edwards case?
21 A. Yes.
22 Q. Tell us what do you know about Dean Kenyon?
23 A. Dr. Kenyon is a biophysicist who taught at
24 San Francisco State University. He’s one of the
25 co-authors of Pandas. He’s also a fellow of the
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1 Center for Science and Culture. He’s a member
2 of the intelligent design movement. He also
3 wrote sections of young earth creationists books
4 in the 1970’s.
5 Q. And can you identify any of those books
6 for us?
7 A. One of those books was by Henry Morris and
8 Gary Parker. I believe the title is What Is
9 Creation Science?
10 Q. Go ahead.
11 A. Another of those books that he wrote a
12 section for was by the young earth creationist
13 A.E. Wilder Smith.
14 Q. And who is Henry Morris?
15 A. Henry Morris is affiliated with the
16 Institute for Creation Research. He’s widely
17 known as the leading, the leader of the young
18 earth creationist contingent in the United
19 States.
20 Q. Who is the other author, named author of
21 Pandas?
22 A. Percival Davis.
23 Q. What do you know about him?
24 A. Percival Davis is the co-author of two
25 earlier books, both taking the young earth
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1 creationist view. He was the co-author in 1967
2 with Wayne Frair of The Case for Creation. He
3 was the co-author of the later edition of that
4 book with Mr. Frair, 1983, called A Case For
5 Creation.
6 Q. Matt, could you pull up Exhibit 344. Is
7 that the cover page of A Case For Creation?
8 A. Yes, that’s the 1983 edition.
9 Q. And it’s making a case for young earth
10 creation?
11 A. Yes. Near the end of the book they side
12 with the young earth view.
13 Q. Did Mr. Davis ever renounce his support for
14 young earth creationism before he became
15 involved with or wrote Pandas?
16 A. Mr. Davis?
17 Q. Yes.
18 A. Not that I’m aware of, no.
19 Q. Has he ever to your knowledge renounced his
20 support for young earth creationism?
21 A. I’m not aware that he has, no.
22 Q. Who else has been involved with the
23 creation of Pandas? You mentioned Mr. Buell
24 Mr. Davis, Mr. Kenyon.
25 A. One of the other people involved was a lady
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1 named Nancy Pearcey. I believe she was one of
2 the contributing editors to Pandas.
3 Q. And what do you know about her?
4 A. She is a young earth creationist. She’s
5 also a long time member of the intelligent
6 design movement. She’s a fellow of the Center
7 for Science and Culture.
8 Q. And has she been involved with any other
9 publications that you’re aware of?
10 A. Yes.
11 Q. And what is that?
12 A. The Bible Science Newsletter.
13 Q. And Matt, if you could pull up Exhibit 634?
14 Is this an example of the Journal of the Bible
15 Newsletter that Dr. Pearcey was the editor of?
16 A. That’s the May 1989 edition.
17 Q. And Matt, could you highlight the section
18 to the right that says “dedicated to”?
19 MR. MUISE: Your Honor, we object on the
20 basis of hearsay.
21 THE COURT: Do you want to expand on your
22 objection other than hearsay?
23 MR. MUISE: Again, Your Honor, it goes to --
24 you’ve got a Bible science newsletter. There’s,
25 I mean the context for this does not fit into
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1 what, you know, they’re trying to claim that
2 this isn’t science. Again they’re relying on
3 phil osophi cal and theol ogi cal claims. This is
4 specifically from a Bible science newsletter.
5 MR. ROTHSCHILD: Your Honor, what we’re
6 trying to demonstrate is that the book that is
7 in the Dover school Of Pandas and People is a
8 creationist book, and we have various forms of
9 evidence, including that the authors and other
10 editors involved with the creation of that book
11 are clear and explicit creationists.
12 THE COURT: Is the author of this newsletter
13 one and the same with a co-author?
14 MR. ROTHSCHILD: Nancy Pearcey is, and I
15 think Dr. Forrest will testify, was involved
16 with the creation of Pandas. She’s not listed
17 as a named author, but is a contributing editor,
18 a reviewer of the book, and - -
19 MR. MUISE: And again, Your Honor, this is
20 going to, you’re talking about a person s
21 private religious beliefs they’re putting in
22 a Bible of science newsletter.
23 THE COURT: We’ll see whether it is.
24 I understand that objection. Your general
25 objection to the document is overruled, but
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1 you can interpose more clinical objections as
2 we get into the parts of the newsletter other
3 than the highlighted part, which is where we
4 are now. So the objection to the newsletter
5 generally is overruled. The objection to this
6 highlighted passage is overruled.
7 BY MR. ROTHSCHILD:
8 Q. And could you read the highlighted passage?
9 A. Yes. “Dedicated to special creation,
10 literal natural Bible interpretation, divine
11 design and purpose in nature, a young earth,
12 a universal Noachian flood, Christ as God and
13 man, our saviour, Christ centered scientific
14 research, the inerrancy of scripture.
15 Q. Is this a newsletter devoted to making the
16 case for young earth creationism?
17 A. Yes, it is.
18 Q. And, Your Honor, just to clarify one point
19 on the record, if I could approach the witness?
20 THE COURT: You may.
21 Q. Dr. Forrest, I’m handing you what we marked
22 as P-li, which is the 1993 version of Of Pandas
23 and People, and I’m turning your attention to
24 the page little Roman numeral III, which
25 includes acknowledgments, and is Nancy Pearcey
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1 mentioned on that page?
2 A. Yes.
3 Q. And what is she mentioned as having done?
4 A. Under editors and contributors she is
5 mentioned as the person who contributed the
6 overview chapter.
7 Q. Thank you. Do you have an opinion about
8 whether the book Of Pandas and People is a
9 creationist book?
10 A. Yes.
11 Q. And what is that opinion?
12 A. It is a creationist book.
13 Q. And why do you say that?
14 A. First, the inspection of the content of the
15 1993 edition contains references to a creator.
16 There is a reference to a master intellect.
17 There is a reference to an intelligent designer
18 who shapes living forms out of clay for example,
19 and other such things. You have the usual
20 creationist’s criticisms of evolutionary theory.
21 In addition to the content of the book itself
22 the earlier drafts of Pandas are written in the
23 language of creationism using that term.
24 Q. Did you in fact review drafts of Pandas?
25 A. Yes.
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1 Q. And how did you, how did those come into
2 your possession so you could review them?
3 A. Those were among the materials that FTE
4 supplied under subpoena to the legal team,
5 and the legal team provided them to me.
6 Q. I’m going to ask you now to look at several
7 documents and ask you to confirm whether these
8 were in fact drafts of Pandas that you reviewed
9 in order to prepare your supplemental report and
10 your testimony today. Matt, could you start by
11 pulling up Exhibit P-563? Do you recognize this
12 document?
13 A. Yes.
14 Q. What is it?
15 A. That is the table of contents for a 1983
16 document, a draft entitled Creation Biology
17 Textbook Supplements.
18 Q. And you said it’s a 1983 draft. What did
19 you do to determine that?
20 A. That year is written by hand at the top of
21 one of the pages, and it’s also in the header
22 line in later pages of the book, apparently the
23 header line put there by the word processor.
24 MR. MUISE: I’m going to oblect based on
25 the hearsay.
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1 THE COURT: Objecting to --
2 MR. MUISE: This document in particular,
3 she’s referring to some handwritten components
4 of this particular document as well.
5 THE COURT: That’s not a hearsay objection,
6 is it?
7 MR. MUISE: If you have writing on the
8 document, Your Honor, that’s hearsay upon
9 hearsay.
10 THE COURT: It doesn’t go to the truth.
11 She’s saying there’s writing on the document.
12 MR. MUISE: I believe she was going to
13 testify that’s how she determined the apparent
14 age of this particular document. So she
15 obviously had to rely on the truth of that.
16 MR. ROTHSCHILD: Your Honor, she relied on
17 both the handwriting and what I think she is
18 describing something in typewriting. Those are
19 the only date markings on the document. That’s
20 how she was able to make a judgment about
21 whether that is in fact the date. It’s not
22 essential to our proof, Your Honor, but I don’t
23 think there’s anything --
24 THE COURT: I think it goes to weight.
25 I’ll overrule the objection.
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1 BY MR. ROTHSCHILD:
2 Q. Matt, could you pull up Exhibit P-560.
3 And this is, as many of these documents has what
4 looks like an envelope page or a folder page on
5 it, but if you could go to the next page, Matt?
6 Do you recognize this document?
7 A. Yes, this document is a later draft
8 entitled Biology and Creation by Dean H. Kenyon,
9 P. William Davis, who was Percival Davis. It’s
10 copyrighted 1986 by The Foundation for Thought
11 and Ethics.
12 MR. MUISE: Again, Your Honor, we’d object
13 to the admission or use of this document in
14 testimony on the basis of hearsay.
15 THE COURT: Where did this come from,
16 Mr. Rothschild?
17 MR. ROTHSCHILD: We served a subpoena on The
18 Foundation for Thought and Ethics, and the
19 documents were produced in response to that
20 subpoena. A number of these drafts were shown
21 to Mr. Buell , who confirmed that they are in
22 fact drafts of what became Pandas. We also
23 have other evidence that demonstrates that that
24 is the case, and that’s how Dr. Forrest received
25 it.
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1 THE COURT: Specifically on the point of
2 whether or not Buell disavowed any of this
3 writing, do you have anything to say about that?
4 MR. MUISE: I’m not aware of him disavowing
5 the writing. I’m not sure whose signature is
6 on the, “Sincerely Yours,” whose hand this
7 letter is actually from.
8 THE COURT: Was Mr. Buell specifically
9 deposed on these matters?
10 MR. ROTHSCHILD: He was, Your Honor.
11 THE COURT: Unless you have some basis to
12 tell me that he disavowed what’s on here or
13 that this is not the document as it was turned
14 over in discovery, then I would be inclined to
15 overrule the objection.
16 MR. MUISE: It still doesn’t affect the
17 hearsay objection, Your Honor, whether he
18 acknowledges it’s the document or not, and
19 I understand you’ve been overruling the
20 objections to hearsay, but I’m making an
21 objection for the record we believe this
22 document - -
23 THE COURT: Well, there’s a reliability
24 aspect that I’m considering. I think it is
25 technically hearsay. The hearsay objection
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1 more doesn’t help me under 703. I think the
2 purpose of this type of torturous, albeit
3 necessary, analysis is to give you the
4 opportunity to do exactly what we’re doing.
5 And so on that basis I’ll overrule the
6 objection. You may proceed.
7 BY MR. ROTHSCHILD:
8 Q. I think you described that document as
9 another one of the draft documents you reviewed?
10 A. Yes.
11 Q. Could you pull up P-i, Matt? Do you
12 recognize this document?
13 A. Yes. This one is entitled Biology and
14 Origins, again by Dean H. Kenyon, P. William
15 Davis, who was Percival Davis, copyright 1987,
16 by The Foundation for Thought and Ethics. This
17 is another draft.
18 Q. Matt, could you pull up P-562?
19 A. This is a cover page I believe.
20 Q. Why don’t we go to the next page, Matt.
21 Do you recognize this document based on the
22 second page of the exhibit?
23 A. Yes, this is a draft entitled Of Pandas and
24 People: The Central Questions of Biological
25 Origins ,by Dean H. Kenyon, P. William Davis,
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1 copyright 1987, Foundation for Thought and
2 Ethics.
3 Q. Another draft you reviewed?
4 A. Another draft.
5 Q. And Matt, could you pull up P-562? Again
6 I think this looks like an envelope page. If
7 you could go to the next page? Do you recognize
8 this document?
9 A. Yes. This is another draft, Of Pandas and
10 People: The Central Questions of Biological
ii Origins, Dean H. Kenyon, P. William Davis as
12 authors. Copyright 1987, Foundation for Thought
13 and Ethics.
14 Q. And one more draft document, if you could
15 pull up P-565? Do you recognize this document?
16 A. Yes. This is a document entitled
17 Introduction to Summary Chapter. It appears
18 to be a summary of the chapters of Pandas.
19 MR. MUISE: Again, Your Honor, I’m going to
20 object to this document based on the hearsay.
21 THE COURT: Overruled.
22 Q. And was this another draft you reviewed?
23 A. Yes, I have this to review.
24 Q. Were you able to place a date on the draft?
25 A. As nearly as I could figure this must have
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1 been produced around 1983 judging by Mr. Buell ‘5
2 comments in his deposition.
3 Q. You read Mr. Buell ‘s deposition on the
4 subjects of these drafts?
5 A. Yes.
6 Q. Three of the documents that we looked at,
7 Biology and Origins and two drafts of Of Pandas
8 and People have the copyright date 1987 on them.
9 Were you able to by examining the documents
10 determine when in 1987 they would have been
11 created?
12 A. Yes, there was some indication.
13 Q. And what was that indication and what did
14 it tell you?
15 A. There were two 1987 drafts in which in the
16 introduction to teachers the June 19th, 1987
17 Edwards decision was referred to in a footnote.
18 In an earlier draft in that introduction that
19 footnote is missing. There’s no reference to
20 Edwards, indicating that that was done before
21 Edwards. The other two 1987 drafts were done
22 after the Edwards decision.
23 Q. And is it correct that it’s Biology and
24 Origins that doesn’t have the reference to
25 Edwards, and the two Pandas drafts titled
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1 Pandas - -
2 A. Yes, I believe that’s correct.
3 Q. They do mention Edwards?
4 A. Yes.
5 Q. Matt, could you go back to the timeline?
6 And could you place Biology and Creation,
7 Biology and Origins, and the two Pandas
8 drafts on the timeline? Thank you. Did you
9 compare the drafts of Pandas to the published
10 versions?
11 A. Yes, I did.
12 Q. And did your review of the drafts of Pandas
13 indicate whether it had originally been written
14 as a creationist book?
15 A. Yes, my review of the draft shows that
16 it was written as a creationist book.
17 Q. And what caused you to come to that
18 conclusion?
19 A. Well, the earlier drafts are all stated in
20 the language of creationism. The word is used
21 in various cognates as that term are used
22 throughout.
23 Q. Can you give us a specific example of
24 where that occurred?
25 A. Specific example?
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1 Q. Specific example of the use of creationism
2 in the early drafts.
3 A. Yes, it’s used in a definition.
4 Q. Okay. And have you highlighted text in
5 each of the drafts as well as the published
6 versions which illustrate this point?
7 A. Yes.
8 Q. Matt, could you pull up the 1986 Biology
9 and Creation, P-560, and go to page 210? And
10 is this the text you’re referring to as the
11 definition?
12 A. Yes. That’s it.
13 Q. And could you read what you’re referring to
14 as the definition in the draft Biology and
15 Creation?
16 A. Yes, this is a definition of creation.
17 “Creation means that the various forms of life
18 began abruptly through the agency of an
19 intelligent creator with their distinctive
20 features already intact. Fish with fins and
21 scales, birds with feathers, beaks, and wings,
22 etc.”
23 Q. The proposition stated there, is there a
24 term for that?
25 A. Yes, there’s a term for this. Abrupt
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1 appearance, or special creation.
2 Q. Matt, could you now pull up Biology and
3 Origins, P-i? And including the highlighted
4 text on page 213, and I’m not going to ask you,
5 you’d have to do a lot of reading, I won’t ask
6 you to do this, is this the same definition we
7 just saw in Biology and Creation, creation means
8 various forms of life began abruptly?
9 A. Yes. That’s the same.
10 Q. Matt, could you now go to P-562, which is
ii one of the draft titles of Of Pandas and People
12 and go to pages 2-14 through 15 where the
13 definitions are depicted? And is it the case
14 that in this draft titled Pandas we still have
15 this definition, creation means that various
16 forms of life began abruptly?
17 A. Yes.
18 Q. Could you go, Matt, to P-652? And this is
19 another draft of Pandas with copyright 1987?
20 A. Yes.
21 Q. And Matt, could you pull up the definition
22 and the highlighted text there? That’s changed
23 now, hasn’t it?
24 A. Yes, there is a change.
25 Q. Could you read the text of this definition
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1 section?
2 A. “Intelligent design means that various
3 forms of life began abruptly through an
4 intelligent agency, with their distinctive
5 features already intact. Fish with fins and
6 scales, birds with feathers, beaks, wings, etc.”
7 Q. And Matt, could you pull up P-6? This
8 is the first published version of Pandas?
9 A. Yes.
10 Q. And could you go to page 99 through 100,
ii Matt? The definition we saw in that last draft
12 of Pandas made it into the published version in
13 1989?
14 A. Yes, this is the published version.
15 Q. “Intelligent design means that various
16 forms of life began abruptly through an
17 intelligent agency with their distinctive
18 features already intact. Fish with fins and
19 scales, birds with feathers, beaks, and wings,
20 etc.” And then if you could pull up P-il, and
21 go to page 99? Same definition as used there
22 for intelligent design?
23 A. Yes, and this is the 1993 definition of
24 Pandas.
25 Q. And notwithstanding the substitution of a
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1 few words, is that still a declaration of the
2 proposition of special creation?
3 A. Yes. It’s a definition in terms of abrupt
4 appearance.
5 Q. And is that special creation?
6 A. Yes, special creation.
7 Q. And based on your examination, is what
8 occurred here is that the same definition was,
9 used only substituting words intelligent design
10 and intelligent agency for creation and
ii intelligent creation?
12 A. Yes, that substitution was made.
13 Q. Matt, could you pull up the slide we have
14 to depict that?
15 Q. And we couldn’t get all the versions
16 up there, but we have Biology and Creation,
17 Biology and Origins, and the first of the
18 two Pandas drafts, and then the final published
19 version as being used in Dover, and the only
20 substitution is intelligent design for creation
21 and intelligent agency for intelligent creator?
22 A. Yes, that’s correct.
23 Q. I’d like to go back to the timeline and
24 lust review what you’ve observed here. We have
25 this 1986 Biology and Creation draft, and that
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1 uses the definition creation equals life began
2 abruptly?
3 A. Yes.
4 Q. And that same definition is used in Biology
5 and Origins in 1987?
6 A. Correct.
7 Q. And then you have the Edwards decision, and
8 that was the case which ruled that creation
9 science is unconstitutional?
10 A. Correct.
11 Q. And the court in that case considered Dean
12 Kenyon’s affidavit in which he defined creation
13 as being abrupt appearance?
14 A. That’s correct.
15 MR. MUISE: Your Honor, I’m kind of slow on
16 the take obviously, but the claim that creation
17 science holding in Edwards, I’m going to oblect
18 based on the prior oblection.
19 THE COURT: We’ll sustain the oblection.
20 Again the court understands what that case said.
21 That’s not a necessary part of this analysis
22 in any event. The oblection is sustained.
23 Q. And Dr. Kenyon in that affidavit also said
24 creati on science and evol uti on are the only
25 two possible alternatives?
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1 A. Right. The only two alternatives.
2 Q. And then after the Edwards decision we have
3 one of these drafts of Pandas still define
4 creation as life began abruptly?
5 A. Yes.
6 Q. But by the second draft it switched to
7 intelligent design equals life began abruptly?
8 A. Correct.
9 Q. That continues into the two published
10 versions?
11 A. That’s right.
12 Q. Was the substitution of intelligent design
13 for creation in the definitions section the
14 only incident where intelligent design was
15 substituted for creation from the drafts to
16 what was ultimately published?
17 A. No. That substitution was made throughout.
18 Q. Have you prepared an exhibit to demonstrate
19 this point?
20 A. Yes.
21 Q. Matt, could you pull up the first slide of
22 the exhibit? And I’m going to ask you what this
23 depicts, but first could you explain how this
24 graph was created?
25 A. This graph was created based on a word
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1 count of the word, a count of the number of
2 times the word “creation” was used, the number
3 of times the word “design” was used. The counts
4 were conducted on ASCII files on the raw text of
5 the draft.
6 Q. Did you do this yourself or did you ask
7 somebody to do it for you?
8 A. The NCSC staff did the word counts and
9 created the chart.
10 Q. Can you tell us, did you do anything to
11 confirm the accuracy of their work?
12 A. Yes. I recreated the word counts on a
13 couple of the drafts myself and got exactly
14 the same results, the same counts.
15 Q. Can you describe for us what this graph
16 depicts?
17 A. The graph depicts the number of times these
18 word were used in the various drafts. For
19 example, on the left-hand side you can see the
20 in Creation Biology, 1983, the term “creation”
21 was used right about 150 times. The word
22 “design” was used about 50 times, and so the
23 red line marks the number of times the word
24 “creation” occurs in the drafts. The blue line
25 marks the number of times the term “design” is
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1 included in the drafts. What you see in version
2 1, 1987, in that draft of Pandas you see that
3 subsequent to that version there is an abrupt
4 decline in the number of times the word
5 “creation” is used, and you can see that in
6 version 2 it’s used less than 50 times in Pandas
7 1987 version 2, whereas in Pandas 1987 version 2
8 the number of uses of the word “design” rises
9 steeply to somewhere between 250 and 300 times.
10 Q. I noticed that in the earlier versions
11 where “creation” is still being used quite a
12 bit you do have also fairly significant use of
13 the word “design.” Do you draw any conclusions
14 based on that?
15 A. Yes. The conclusion is that they are being
16 used interchangeably. They’re virtually
17 synonymous.
18 Q. And did you read these drafts?
19 A. Yes, I looked through the drafts, yes.
20 Q. And based on reading them is that what’s
21 depicted graphically here is consistent with
22 what you observed when you read it?
23 A. Yes. The visual inspection shows very
24 clearly the substitution of the term “design”
25 for the term “creation.”
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1 Q. And was it also the case that in the early
2 drafts the terms were sometimes used
3 interchangeably?
4 A. Yes.
5 Q. Matt, could you pull up the next slide?
6 And this is isn’t terribly different, but why
7 didn’t you describe what this depicts?
8 A. It’s a bit broader search. You’ll notice
9 that the word “creation” has an ending, it has
10 an “-is” ending. That is so that the counter
11 will pick up any cognate of that word,
12 creationist or creationism, that both will be
13 counted, and here we’re looking for the term
14 “intelligent design” rather than just “design.”
15 What this indicates is that you see the same
16 thing in these drafts. In the early drafts you
17 see the use of the term “creationism” and its
18 various cognates.
19 Not very much use at all of the term
20 “intelligent design.” In fact, in Creation
21 Biology it’s zero times. And then subsequent
22 to the version 1 of Pandas 1987 you see a steep
23 decline in the use of the term “creation” and
24 its various cognates, and you see a very sharp
25 rise in the use of the term “intelligent design”
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1 in that second version of Pandas of 1987.
2 Q. And based on your review do you see the
3 change happening after the Edwards decision?
4 A. Yes.
5 Q. Have you seen any other documents that
6 suggest that the foundation for thought and
7 ethics understood that the Edwards decision
8 had consequences for the book it was preparing?
9 A. Yes, I have.
10 Q. Matt, could you pull up Exhibit P-350?
11 What is this document?
12 A. This is a January 30th, 1997 letter written
13 by Mr. Buell to Mr. Arthur Bartlett of Jones &
14 Bartlett Publishers. He is soliciting interest
15 in the Pandas text.
16 Q. And is that a mainstream publisher?
17 A. It’s a publisher of textbooks. Apparently
18 it publishes a lot of textbooks.
19 Q. Did Jones & Bartlett end up publishing
20 Pandas?
21 A. No.
22 Q. Who did?
23 A. Houghton Publishing.
24 Q. And what kind of books does Houghton
25 Publishing publish?
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1 A. It’s an agricultural publishing firm. They
2 do not employ science writers, or at that time
3 did not employ science writers or science
4 editors.
5 Q. Matt, could you go to the second page of
6 the document? And I asked you to highlight
7 in that, the third paragraph, it says here,
8 Our manuscript is entitled Biology and Origins.”
9 That was a working title for Pandas as we saw it
10 in the earlier draft?
11 A. Yes, that is a working title.
12 Q. And now could you go back to the first page
13 of the document, Matt? And could you illuminate
14 the passages that Dr. Forrest asked you to
15 highlight? And could you read that into the
16 record, Dr. Forrest?
17 A. “In ruling on the so-called Louisiana
18 Balance Treatment acts, this spring the U.S.
19 Supreme Court may not affirm state mandated
20 teaching of creation, but they will almost
21 certainly let stand the above academic freedom
22 for teachers.”
23 Q. Do you have an understanding of what case
24 Mr. Buell is referring to here?
25 A. He’s referring to the Edwards case.
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1 Q. And if you could go to the next highlighted
2 passage, Matt? Could you read this into the
3 record?
4 A. “The enclosed projection showing revenues
5 of over 6.5 million in five years are based upon
6 modest expectations for the market, provided the
7 U.S. Supreme Court does not uphold the Louisiana
8 Balanced Treatment acts. If by chance it should
9 uphold it, then you can throw out these
10 projections. The nationwide market would be
11 explosive.”
12 Q. What do you understand Mr. Buell to be
13 conveying there?
14 MR. MUISE: Objection. Calls for
15 speculation.
16 MR. ROTHSCHILD: Your Honor, I think
17 Dr. Forrest can interpret this in relation what
18 she has studied about the writing of Pandas and
19 Mr. Buell’s stated rationale.
20 THE COURT: No, I think it speaks for
21 itself. I’ll sustain the objection.
22 BY MR. ROTHSCHILD:
23 Q. Do the drafts of Pandas that you reviewed
24 address the issue of the age of the earth?
25 A. Yes.
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1 Q. And how do they treat that?
2 A. They recognize the various positions on
3 the age of the earth among different types of
4 creationists.
5 Q. And do they say one is right and one is
6 wrong?
7 A. No. Actually they recognize the young
8 earth view, the old earth view, and although
9 the preference is clearly for the old earth
10 view, they treat the young earth view
11 respectfully as a scientific position which
12 just simply needs more research.
13 Q. I’d like you to look at one exhibit I think
14 provides an example of that. Can you pull up
15 P-555? This is what you called the summary
16 chapter 1 of the drafts that Mr. Buell was
17 provided by the foundation?
18 A. Correct.
19 Q. And Matt, could you turn to page 22 of the
20 document and highlight the first passage? Could
21 you read this into the record, Dr. Forrest?
22 A. “The standard evolutionary interpretation
23 is that rock strata around the world were laid
24 down over several million years. Thus, they
25 document a time sequence. Organisms that appear
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1 as fossils in lower strata lived earlier than
2 those in higher strata.”
3 Q. And is this your understanding of the sort
4 of the standard evolutionary interpretation?
5 A. It’s the standard evolutionary view.
6 Q. Could you go to the next passage, please,
7 and could you read that into the record,
8 continuing on to the next page?
9 A. “Among creationists there is considerable
10 skepticism regarding this traditional
11 interpretation. Three major alternative
12 interpretations are found in creationist
13 literature. One, old earth creation. Some
14 creationists accept the same time sequence in
15 the rocks as evolutionists do, but they draw a
16 different conclusion. They propose that at
17 various times throughout the history of the
18 earth an intelligent agent stepped into the
19 course of natural history to create a new type
20 oflivingthing.”
21 Q. Before you go on, Dr. Forrest, at this time
22 as of the writing of this draft were they still
23 using the term “creation” for the central
24 concept of the book?
25 A. Yes.
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1 Q. But they’re referring here to an
2 intelligent agent stepping into the course of
3 natural history to create a new type of living
4 thing?
5 A. That’s correct.
6 Q. That proposition, is that the same thing
7 that’s stated in the writings of intelligent
8 design?
9 A. Yes.
10 Q. Why don’t you go on --
11 A. “Number 2, young earth creation. It is
12 possible that the earth is actually quite young,
13 and that the order we see in the rocks is due to
14 something besides the progression of life
15 forms.”
16 Q. And then if you could do just one more
17 passage?
18 A. One more, sorry. “3, agnostic
19 creationists. Under this label we include
20 scientists who deny that there is any real order
21 in the fossil record at all .
22 Q. These passages indicate there are various
23 form of creationism?
24 A. Yes. Here there are three.
25 Q. And do I understand correctly that this
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1 draft is not taking any position on one version
2 being right and the other being wrong and one
3 being inside science and one being out?
4 A. They are all considered science.
5 Q. Per the authors of this chapter?
6 A. Yes.
7 Q. How does Pandas treat this issue of the
8 age of the earth?
9 A. In Pandas, and I’m speaking of the 1993
10 version that I looked at, in Pandas all of these
11 views are subsumed under the grouping of design.
12 They’re referred to as design proponents. There
13 is some indication that there’s a preference for
14 the old earth view and that the young earth,
15 that other design proponents prefer to condense
16 the history, the age of the earth into thousands
17 of years.
18 Q. Based on your reading about the intelligent
19 design movement, including these drafts but also
20 more widely, do you find this treatment of the
21 various arguments for the age of the earth to be
22 important?
23 A. Yes, they’re important.
24 Q. Why?
25 A. They’re important because it indicates that
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1 the young earth view is considered a scientific
2 view, which they believe creation science to be,
3 and that they are treating it respectfully and
4 consider it a part of creation science.
5 Q. I think you said during the qualifications
6 stage of this, of your testimony, that
7 intelligent design proponents in fact have
8 called themselves creationists. Is that right?
9 A. Yes, they have.
10 Q. Matt, could you pull up Exhibit 360 and
11 highlight the title and author? Can you read
12 this into the record and tell us what this
13 document is.
14 A. Yes. This is a title. It’s called
15 Challenging Darwin’s Myth by Mark Hartwig.
16 That’saslightmisspelling. It should be
17 H-A-R-T-W-I-G.
18 Q. And when was this published?
19 A. This was in May of 1995.
20 Q. Who is Mark Hartwig.
21 A. Mark Hartwig is an intelligent design
22 proponent. He’s a long time fellow of the
23 Center of Science and Culture. He also at one
24 time worked for the Foundation for Thought and
25 Ethics.
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1 Q. Have you highlighted certain passages in
2 this article?
3 A. Yes.
4 Q. Matt, could you go to the first highlighted
5 passage? Could you read this into the record,
6 please?
7 A. “Today a new breed of young... --
8 MR. MUISE: Objection, Your Honor. Hearsay.
9 THE COURT: Well now, this might be somewhat
10 different. You said, Mr. Rothschild, in your
11 question that the author of this was affiliated
12 at one time with The Foundation for Thought and
13 Ethics, is that correct?
14 MR. ROTHSCHILD: I didn’t say it, but
15 Dr. Forrest did.
16 THE COURT: Or in answer to a question that
17 was stated. Standing out there and unconnected
18 to either FTE or directly linked to Pandas
19 there’s a danger that we’re going to get afield
20 here. So there may be another basis for the
21 objection. A proponent of intelligent design
22 and that proponent’s beliefs, if not tied up
23 some place, I think could be objectionable.
24 MR. ROTHSCHILD: Your Honor, I think
25 Dr. Forrest testified, and she’ll correct me
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1 if I’m wrong, that Mr. Hartwig is familiar with
2 the, affiliated with the Discovery Institute,
3 which is obviously a central player in this
4 movement, and I’ll warn you in advance that the
5 next document we’re going to look at was written
6 by Paul Nilsen, another member of the Discovery
7 Institute, very active, and both of them give a
8 historical summary of certain aspects, some of
9 the history of the intelligent design movement.
10 I mean, you’ll recall Mr. Muise admonished
11 Dr. Forrest for not having looked at the so what
12 document written after her book, and I think she
13 suggested in reaction to her book. These are
14 two people writing as insiders of this Wedge
15 movement and the Discovery Institute about how
16 this came about and who these people are. So
17 I think it’s extremely relevant. It’s exactly
18 what someone studying the history of the
19 intelligent design movement would look at as a
20 primary source for how this movement was
21 created.
22 THE COURT: All right. I’ll overrule the
23 objection.
24 MR. ROTHSCHILD: Thank you, Your Honor.
25 BY MR. ROTHSCHILD:
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1 Q. Could you read this passage into the
2 record?
3 A. “Today a new breed of young evangelical
4 scholars is challenging those Darwinist
5 assumptions. They argue that intelligent design
6 is not only scientific, but is also the most
7 reasonable expl anati on for the origin of living
8 things, and they are gaining a hearing.”
9 Q. Could you tell us what the term evangelical
10 means?
11 A. Evangelical refers to a particular position
12 in Christianity in which the adherents believe
13 themselves to have the responsibility of
14 evangelizing, of carrying out what they consider
15 to be the great commission to carry the gospel
16 around the globe.
17 MR. MUISE: Your Honor, objection. She
18 testified that she is has no expertise on
19 religion, and here she is now expounding on
20 carrying religious affiliation, the dogmas of
21 a particular group.
22 MR. ROTHSCHILD: Your Honor, I think based
23 on both her education, what she teaches, and
24 what she’s written about, while she certainly I
25 don’t think would describe herself as a
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1 theologian like Jack Haught, these are the
2 kind of terms that people in her field would
3 work with every day and she’s certainly worked
4 with as part of her research and writing.
5 THE COURT: To the extent that the question
6 is answered I didn’t find the answer to be
7 objectionable, so we won’t strike it. So the
8 objection is overruled as it relates to that
9 answer, that question and that answer.
10 BY MR. ROTHSCHILD:
11 Q. Dr. Forrest, were you able to conclude by
12 reading the article who the evangelical scholars
13 were that Mr. Hartwig is referring to?
14 A. He names them.
15 Q. And we’ll go to another passage when that
16 occurs and I won’t ask you to do that by memory.
17 Matt, could you go to the next highlighted
18 passage? And could you read this passage into
19 the record?
20 A. “In March 1992 a landmark symposium took
21 place at Southern Methodist University in
22 Dallas. Phillip Johnson, Steven Meyer, William
23 Dembski, Michael Behe, and other Christian
24 schol ars squared off agai nst several promi nent
25 Darwinists. The topic was Darwinism science, or
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1 philosophy. The remarkable thing about the
2 symposium was the collegial spirit that
3 prevailed. Creationists and evolutionists met
4 as equals to discuss serious intellectual
5 questions. Not surprisingly, few issues were
6 resolved, but in today’s Darwinist climate,
7 where dissent is frequently written off as
8 religious bias, just getting the issues on the
9 table was an accomplishment.”
10 Q. And are the individuals named there,
11 are those the evangelical scholars in the
12 intelligent design movement that Mr. Hartwig
13 was referring to?
14 A. Yes. These are the evangelical scholars to
15 whom he’s referring.
16 Q. And is he referring to them by another
17 title as well?
18 A. Christian scholars.
19 Q. And another one? Is he referring to them
20 as creationists?
21 A. Oh, yes. Yes.
22 Q. Who were squared off in debate with what he
23 calls Darwinists or evolutionists?
24 A. Yes. He notes that they are taking
25 opposing sides.
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1 Q. This is a good a time as any, are these --
2 the named individuals, are they important people
3 in the intelligent design movement?
4 A. These are the leaders. These are the
5 people who founded the Wedge Strategy.
6 Q. That’s true of Mr. Johnson, Mr. Meyer,
7 Mr. Dembski , and Mr. Behe?
8 A. Yes. That’s true of all of them.
9 Q. I think there’s one more passage that we
10 have highlighted in there.
11 A. “Creationists are still far from winning,
12 but they believe things are getting better. As
13 Johnson points out, creationist arguments are
14 growing more sophisticated, while more
15 Darwinists are still responding with cliche.
16 Now it’s the creationists who come across as
17 asking the hard questions and demanding fair
18 debate.”
19 Q. Again when he’s referring to creationists,
20 he’s referring to those individuals?
21 A. He’s talking about those people he named,
22 yes.
23 Q. I think you also said during the
24 qualifications part of your testimony that
25 intelligent design and Pandas make many of
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1 the same arguments as prior creationists, is
2 that right?
3 A. Yes.
4 Q. Have you prepared a demonstrative exhibit
5 which addresses that question?
6 A. Yes, I have.
7 Q. Matt, could you pull that chart up?
8 And before we get into the substance, can
9 you describe what you’re attempting to
10 demonstrate through this exhibit?
11 A. I made a chart showing the line of
12 development from the young earth scientific
13 creationism of the 1970’s through the 1980’s
14 to intelligent design creationism in the 1990’s
15 to the present.
16 Q. And each page of this exhibit depicts a
17 different argument or theme?
18 A. Yes, each page depicts one aspect that you
19 find in creationism through these many decades,
20 three decades.
21 Q. And underneath the particular argument or
22 theme you have a representative statement on
23 that point?
24 A. Yes.
25 Q. And Your Honor will probably be happy to
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1 hear, I’m not going to ask Dr. Forrest to read
2 every one of those statements. We’re happy to
3 make them available to you as part of the
4 record, but I’m going to ask her lust to talk
5 about the topic and key points within those
6 statements. So why don’t you start with this
7 first comment, argument, or theme, relection of
8 naturalism?
9 A. The first ones comes from 1974, it’s
10 again Henry Morris, a well known young earth
11 creationist, and he is relecting naturalism
12 as an explanation. This is typical in
13 creationism to relect naturalistic explanations.
14 Dr. Kenyon in 1986 in his affidavit also relects
15 the, or does not accept the claim that there is
16 a naturalistic origin of life. In 1998 you see
17 Dr. Dembski in a book called Mere Creation
18 relecting naturalism, distinguishing it from
19 creation, and it’s clear here that he relects
20 it for religious reasons because he says that,
21 “As Christians we know naturalism is false.
22 Nature is not sufficient,” and this is very
23 common throughout creationism.
24 Q. And based on your reading of creationist
25 intelligent design work, what’s the alternative
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1 to the naturalism that they’re relecting?
2 A. There’s only one alternative to a natural
3 explanation, and that’s a supernatural
4 explanation.
5 Q. Could you go to the next page of the chart?
6 And Your Honor, after we’re through with this
7 exhibit if you’d like to take a lunch break,
8 that would be a good time.
9 THE COURT: All right.
10 Q. Evolution’s threat to society, is this a
11 common theme?
12 A. This is also a very common theme. Here you
13 see Mr. Morris in 1974 charging evolution with
14 tending to rob life of meaning and purpose, and
15 I might point out that Phillip Johnson actually
16 goes a little farther and says it does rob life
17 of its meaning and purpose. The second quote is
18 from Duane Frair and Percival Davis, who are the
19 co-authors of Pandas, and this comes from their
20 book 1983, A Case For Creation. They also
21 regard this doctrine of evolution dangerous to
22 society. The third quote comes from the Wedge
23 Strategy document itself and makes the same
24 point, that Darwin portrays human beings not as
25 moral beings but as animals and machines, and
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1 what this does is to undermine human moral
2 freedom and moral standards.
3 Q. And we’ll talk more about that document
4 later, but why don’t we go to the next slide?
5 A. The next slide is about abrupt appearance.
6 This is where life forms appear in the history
7 of earth fully formed. In 1974 in Henry
8 Morris’s book Scientific Creationism he makes
9 that point with the animals appearing suddenly
10 with no transition of, no evidence of earlier
11 life forms. In Dr. Kenyon’s affidavit he says
12 the same thing, you see abrupt appearance of
13 animals in complex form, and in Mr. Kenyon and
14 Percival Davis’ book Of Pandas and People, 1993,
15 of course there’s the definition of intelligent
16 design as the abrupt appearance of fully formed
17 animals that we talked about earlier.
18 Q. And you called that also special creati on?
19 A. That’s also called special creation,
20 right. It requires a special intervention
21 by a supernatural deity into the processes
22 of nature.
23 Q. Why don’t we go to the next slide?
24 A. This one is about gaps in the fossil
25 record, focusing specifically on the Cambrian
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1 explosion. This is a very frequently used
2 target of criticism in evolution theory about
3 the Cambrian fossil. Henry Morris in 1974
4 pointed out that there’s a gap between the one
5 celled microorganisms and the invertebrate phyla
6 of the Cambrian period. I’ll repeat that for
7 you. Henry Morris in 1974 points out that there
8 is a very large gap between one celled
9 microorganisms and the mini invertebrate phyla
10 of the Cambrian period, that species appear in
11 the fossil record with no apparent precursors,
12 which he calls no incipient forms leading up to
13 them, and he doesn’t anticipate, he forecloses
14 any possibility that further fossil collecting
15 will fill in these gaps.
16 In the next item, this is from Duane Frair
17 and Percival Davis, again from their 1983 book,
18 they’re also pointing to what they consider to
19 be gaps in the fossil record, and they attribute
20 these gaps, they explain these gaps, these
21 abrupt things as special activity of God. They
22 believe that that’s a reasonable explanation for
23 these gaps in the pre-Cambrian fossil record.
24 The third item of the quote comes from a
25 paper published by Dr. Stephen Meyer in 2004,
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1 and he is also making the same criticisms in
2 regard to the record of the Cambrian fossil
3 record. He says that this record implies the
4 absence of clear transitional forms that would
5 connect the Cambrian animals to earlier animals,
6 and likewise he suggests that these gaps are
7 not going to be filled in by simply collecting
8 more fossils, gathering more samples.
9 Q. Dr. Forrest, based on this morning I’m
10 not going to dare to qualify you as a
11 paleontologist, and we will hear from
12 one later on, but can you tell me whether
13 Henry Morris is a paleontologist?
14 A. No, he’s not a paleontologist. I believe
15 he’s a hydraulics engineer.
16 Q. What about Duane Frai r and Perci val Davis?
17 A. No, they’re not paleontologists, and
18 neither is Dr. Meyer.
19 Q. Thank you. We can go to the next slide.
20 Supernatural design and biochemical complexity.
21 Tell us about those connections.
22 A. Yes, with regard to the supernatural design
23 of biochemical complexities, the general comment
24 in these that unites them is that the complexity
25 of DNA for example simply is not possible
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1 through natural processes, that it requires
2 input from outside by a supernatural creator.
3 Henry Morris points this out, he says that the
4 complex systems such as the DNA molecules are
5 not the products of chance. You need a great
6 creator for that. And Dr. Kenyon s 1986
7 affidavit, you see him pointing out that
8 biomolecular systems require, these complex
9 systems that he’s talking about require
10 intelligent design.
11 This has to be put in from the outside,
12 from out, and he’s talking here about outside
13 the system of nature. And then a quote from
14 Dr. Behe’s book Darwin’s Black Box, he also
15 rejects the idea that there is a natural process
16 that could produce biochemical complexity. In
17 fact, if you will look, if you will note he
18 refers to this process as a phantom process,
19 which suggests that he doesn’t actually see a
20 natural process that can produce this type of
21 complexity.
22 Q. So this argument from biochemical
23 complexity to a supernatural creator, that’s
24 not new to Mr. Behe?
25 A. No, it’s not new at all, and again I point
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1 out that that’s the only conceptual alternative
2 to a natural explanation. If you reject the
3 idea that natural processes could do this, you
4 are of course endorsing the supernatural
5 explanation.
6 Q. And this argument is not new to intelligent
7 design?
8 A. It’s not new at all. It’s been there for
9 decades.
10 Q. Could you go to the next slide, Matt?
11 This is the heading, “Teach the controversy,
12 alternative theories, strengths and weaknesses
13 of evolution.” Tell us what this is about.
14 A. Yes, the intelligent design movement uses
15 very frequently the argument that children
16 should be taught the controversy, that there’s
17 a controversy within science itself about the
18 status of evolution, and I really would like to
19 begin with the more recent quotes, because what
20 they mean by teaching the controversy, and these
21 are encapsulated in this quote, both of them, is
22 that children should be taught about intelligent
23 design as an alternative theory to evolution,
24 and that children should be taught the strengths
25 and weaknesses of evolution, and all of these
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1 are mentioned in a quote by Dr. Meyer and John
2 Angus Campbell, who is also a fellow for the
3 Center for Science and Culture in March of this
4 year endorsing this position.
5 If you look back in 1973, Duane Gish, who
6 is also another very well known young earth
7 creationist, is essentially saying the same