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