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

2


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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25





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                                                                                   3

  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

13


14


15


16


17


18


19


20


21


22


23


24


25





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                                                                                 4

  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.





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5

 

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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                                                6
  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

7

 

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.





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8


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.





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9


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





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10

 

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





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11

 

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.





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                                                  12
  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?

 

 

 

 

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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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14

 

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?





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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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19

 

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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20

 

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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21

 

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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                                                  22
  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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                                                                                 23

  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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24

 

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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25

 

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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                                                  26
  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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                                                  27
  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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33

 

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