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Kitzmiller v. Dover Area School District

Trial transcript: Day 10 (October 17), AM Session, Part 1


THE COURT: All right. Good morning to all. We have some exhibits to take before we get into our first witness. So let's take -- what's your pleasure? What do you want to take first from the Plaintiffs?

MR. HARVEY: Mr. Stough's exhibits.

THE COURT: All right. I have -- it looks like, predominantly, we have, I'm not sure that I should or want to read all of them, but they look like news articles that are not going to be admitted yet, at least at this point. The non-news articles, so to speak, would be.

MR. HARVEY: Letters to the editor.

THE COURT: P-671 would be -- that's correct, the letters to the editor chart. The affidavit is 670. 674, again, I think, is the chart. 672 is the chart. 675 is the chart.

MR. HARVEY: Just to be clear, Your Honor, those exhibits were the editorials and the letters themselves with the chart.

THE COURT: With the chart, that's correct. And P-702 was the letter that the witness received. I think all the other exhibits were articles themselves. Tell me if I'm wrong.

MR. HARVEY: You're correct, Your Honor, with the exception of two article exhibits that were already admitted.

THE COURT: All right. So are you moving for the admission of the exhibits that I recited?

MR. HARVEY: Yes, Your Honor.

MR. GILLEN: Your Honor, we object. We object to the -- it looks to me like we object to everything except the affidavit prepared by Mrs. Aryani, which is, I believe, 670.

THE COURT: That would be 670. And I think you interposed objections -- I understand the gist of your objections having had those placed on the record at the time those exhibits were referred to. All right.

Well, 670, the affidavit, will be admitted. P-702, I'll hear argument on that, but I would not be inclined to admit 702. But if you want to make additional argument, you can.

MR. HARVEY: Your Honor, I have nothing further to say.

THE COURT: All right, I'm not going to admit 702, which is a letter by an unknown author, handwriting on it is unreliable, and he testified about the receipt of the letter, and I think that was sufficient. But I don't believe the letter itself should be admitted.

Now, Mr. Harvey, what do you want to say about the other exhibits? They would be 671, 674, 672, and 675, all of them being letters to the editor and/or editorials and the chart? The charts, I would certainly be inclined to admit.

I understand the objection, but I don't think the chart, as being summaries of the contents, are objectionable, so I'll admit the chart so you can focus your argument on the letters themselves and the editorials.

MR. HARVEY: It's simply that they come in on the effect test. They're probative on that issue. The Supreme Court in the Epperson case considered letters to the editor. So this is -- they're certainly relevant. They're probative. They're not unduly prejudicial. They're authentic. They cover the time period, June 2004 to September 2005, so that the relevant time period. They should come into evidence. And they're not offered for the truth of the matter asserted, of course. They're offered for the effects test, so there's no hearsay issue either.

MR. GILLEN: Your Honor, I do think I have a little more to offer you by way of value here. I thought all weekend about our colloquy on Friday. I want to suggest, this is why the request for admissions is erroneous and why the question that you posed on Friday is addressed in the law and doesn't require admission into evidence.

First, I want to suggest that what's being offered to you here is a flawed chain of reasoning, and it runs as follows: Mr. Stough has no personal knowledge, but he read the articles, which are hearsay. Based on that hearsay, he formed a belief, a state of mind that Dover Area School District was advancing religion. Based on that hearsay in his state of mind, his state of mind is now being offered with the support of these articles to prove the fact he believes that Dover Area School District was advancing religion.

For the reasons I've stated, I believe that that cannot happen under the Federal Rules of Evidence. But on Friday, Judge, you asked me a good question that I've thought about. It is this. You said, Mr. Gillen, I think you set the bar too high. I think that he doesn't have to attend the board meetings to be apprised of the effect.

Your Honor, in thinking of that, I want to suggest that the law and the way the law treats the test that you have to apply in this case addresses your concern without requiring the admission of this hearsay. And this is why.

The test that you're asked to apply in this case, if you believe the endorsement test applies -- we say it doesn't. We say it doesn't get outside the classroom. But if you so hold, then the test asks you to find what a reasonable observer would believe. Now, Judge, when the law asks you to make that determination, there is no necessary connection between the actual knowledge of a given Plaintiff and the knowledge that the law imputes to the objective reasonably informed observer for the purpose of the test.

Let me give you two brief examples that demonstrate this is the way the law treats it and this is why the problem that you see isn't a problem that comes from the evidence. Just take a display case right up there in the State Capitol. There's a cross. A Plaintiff could see that cross and believe that the State is advancing religion.

THE COURT: Well, that's why the endorsement test is used for displays such as the Ten Commandments.

MR. GILLEN: Exactly. Now, Judge, look at the outcome of such a case. If that Plaintiff comes in and brings a claim, there's two different outcomes. It could succeed or fail. But my point to you, Your Honor, is, it could succeed or fail based on knowledge or facts in evidence that were utterly unconnected to the actual knowledge of the Plaintiff.

In one case, the claim could fail, because the evidence of record, the facts of the matter could demonstrate that, although the Plaintiff didn't know it, the reality is, it's a forum.

THE COURT: Well, you argue the endorsement test, and I might agree with you on the endorsement test. I understand your point exactly. But I think what Mr. Harvey argues is that, and the courts have done this, as you know, they've done alternative analysis. They've done it under purpose and effect, and then they've interposed endorsement in case, I suppose, appellate courts want to see it done both ways.

I might agree with you that, if we do it on an endorsement analysis, admission is problematic. Now Mr. Harvey says, they get admitted on the effect test, the straight effect test. What I grapple with on the effect test, I all tell you all rather candidly, is effect upon whom? And I have yet to decide that, obviously. You would say, I think, Mr. Harvey, that it's broader than simply the 9th grade students. I think you would say not. Is that --

MR. GILLEN: Correct, Judge. The effect of a curriculum change is the effect on the instruction in the classroom.

MR. HARVEY: Regardless, Your Honor, it's the reasonable observer in the community, whether it's the 9th grade student or somebody else. And --

THE COURT: Well, but are we sure about that? You say that for the effect test, but admittedly, courts have done it both ways. Some courts have limited it to the recipients or the direct recipients of the policy, being the 9th grade students. You cast it in a conjunctive sense.

Other courts have said, no, it's limited to the intended recipients, being the 9th grade students. In that case, of course, the testimony doesn't come in on the effect test in any event; so no harm, no foul, from your perspective.

MR. GILLEN: Correct, Your Honor.

MR. HARVEY: Your Honor, I believe the courts have looked at the reasonable observers in both contexts and have discussed these --

THE COURT: In both the endorsement and the effect?

MR. HARVEY: Yes, and looked at the effect on the community, what message is being sent to the community as preceived by this reasonable observer. And the reasonable observer, whether it's a 9th grade student or not, would read this note that's being handed to me by my counsel -- no.

THE COURT: Always great to have co-counsel.

MR. HARVEY: Absolutely. Would certainly be reading what's in the paper, the letters to the editor and editorial. These are the local papers. I mean, this is about a good as source as you can get.

THE COURT: But Mr. Gillen says, it's hearsay, it hasn't been established, and why should the reasonable observer be permitted to rely on something that is not conceded to be true.

MR. HARVEY: Well, Your Honor, I guess we're going to determine in this case whether that's true or not. But nevertheless, that is what is out there in the community. And another point is, it's not just what was published in the classroom. This was published in the entire community. So we have it put out there for the entire community.

THE COURT: I understand that. And I think you have evidence on that point to be sure, and in your case, you've established that. But on these particular areas, which would be editorials, you know -- and I'll address this to you, Mr. Gillen. These are editorials, these are opinion pieces. You say though, implicitly they assume facts.

MR. GILLEN: Exactly, Your Honor. The difference between these letters that were published in the newspaper and 702, which is a deplorable thing to send to someone, is a difference of degree not kind. They're both just someone's opinion as to what's going on and in a paper.

It is not evidence for this Court. They are not here in front of you. All it is, is, on that, on that sort of evidence, Judge, a man could be convicted of something based on nothing more than what people think and put in the paper. I mean, let me suggest that the western legal tradition did not give up trial by ordeal, trial by combat, trial by compurgation, so we could have trial by press clipping. I mean, it's just --

MR. HARVEY: Mr. Gillen apprehends this fundamentally. He is continuing to assume that we're offering these for the truth of the matter asserted to prove the underlying facts. Let me be clear about that. We have put in much evidence to prove the underlying facts. We will put in additional evidence, including the testimony of the reporters themselves, that these things were said, that they actually happened. These articles for this are not being offered for this purpose.

THE COURT: Here's what I want to do. I'm going to ask that -- I'm going to defer a ruling on 671, 674, 672, and 675. I believe that it's appropriate for me to read, particularly the underlying documents, not the charts. I saw the charts, but I didn't see the underlying documents. I'll do that. And I would like to ask Mr. Harvey, if you would do me the favor of reminding me that we need to revisit that.

I know you're burdened with a lot. All counsel are. But if you would allow me to circle back after I've read those, and then I might take some additional argument at that time. One of the disadvantages I have is that I have not read the contents.

And I will say, too, that I recognize, Mr. Harvey, your argument that it doesn't go to the truth. I think that's the argument that you need to make under the circumstances. I understand Mr. Gillen's argument, that it necessarily has to go to the truth.

One of the things that will happen between now and perhaps the time that we revisit these is that we're going to have testimony, I believe, from the reporters that may tie up some of these ends, or may not tie up some of the ends, as the case may be.

I think it's prudent to withhold ruling on 671, 674, 672, and 675. We will not admit 702. We will admit 670. Now are there any other exhibits for that witness that I missed, Mr. Harvey?

MR. HARVEY: No, Your Honor, just the articles, and I understand you're withholding ruling on those as well.

THE COURT: Right. So we'll not take those at this time. I'll rely on you at a later point in time also to indicate that you want to move for admission of the articles, if you choose to do so, any or all of the articles. All right. Now the -- for Padian, we have, his CV is 292. Are you move for the admission of that?

MR. WALCZAK: Yes, Your Honor.

THE COURT: That's admitted, I assume without objection, is that correct, Mr. Gillen? It's a CV.

MR. GILLEN: It is. Actually, Mr. Muise will speak to that.

MR. MUISE: There is no objection.

THE COURT: And the D-282 was referred to on cross. That was the U.S. Office of Special Counsel letter. What is your pleasure on that? Do you want to do anything with that at this time?

MR. MUISE: Well, we would move for its admission, Your Honor.

MR. WALCZAK: We would oppose, Your Honor. It's hearsay. The document was not discussed in court. We don't know about the authenticity. We don't know whether it's reliable. We don't know whether it's accurate. It was used to attempt to impeach the witness, and he didn't have any knowledge. We would object.

THE COURT: Mr. Muise.

MR. MUISE: Well, again, Your Honor, I think for the purpose of what we want it for the contents of that document, I mean, it was read into the record.

THE COURT: Well, I gave you latitude on it, and I allowed part of it to be read into the record over counsel's objection. But I would be reluctant to admit the letter on the whole. I think Mr. Walczak's point is well-taken. It is essentially a hearsay document.

MR. MUISE: Your Honor, at this point then, we would like to reserve the admission of that until, because we're actually pursuing the possibility of getting a way to have that authenticated.

THE COURT: That's fine.

MR. MUISE: We'll reserve. We won't move that right now. We'll reserve the admission of that document until later.

THE COURT: That's fine. I'll certainly give you the opportunity to do that. But at this point, I'll not admit D-282 then. So the only exhibit for that witness would be 292, which would be the CV, unless I am missing something.

MR. WALCZAK: Your Honor, in this case, we actually would like to move in the slides from Professor Padian's demonstrative exhibit.

THE COURT: Do you have numbers on them?

MR. WALCZAK: We have -- it's going to be Exhibit 720. We have not. We're trying to get a nice color copy.

THE COURT: That would encompass all the slides?

MR. WALCZAK: I would think it would be easier for the Court to consider all of the slides. And what we have are quotes from either Pandas, quotes from some of the creationist writers. And then the rest of them are either photographs or charts that were prepared by Professor Padian about which he testified here. So certainly on the latter two, there should be no problem. The first two are really, I mean, it's --

MR. MUISE: Your Honor, I think the same thing was so done with Dr. Miller. And in terms of, to assist this Court in making its final determination, obviously, there's a lot of testimony that the Court is going to have to review. If they want to provide it to the Court for demonstrative purposes to assist in review of the testimony, we would have no objection to that.

We would actually prefer to do the same thing with our expert witnesses, because we're going to have similarly quite a few demonstrative exhibits that I think would facilitate the Court. And as long as it's going to be presented to the Court for that purpose, then we wouldn't object, and we would appreciate the same latitude as well.

THE COURT: Well, you're talking about nothing more than a slide that was up during his presentation, is that correct, or some version thereof?

MR. WALCZAK: I think there was about a hundred slides. Up to now, we have only introduced those to assist the Court. And I guess they're not properly part of the record. What we're saying with Professor Padian is, at least for the photographs and the charts that he prepared, we would like to move those into evidence.

THE COURT: All of which though were viewed or referred to during his testimony, that was my --

MR. WALCZAK: Absolutely. Only what's been put up.

THE COURT: I think Mr. Muise is correct. There was a similar issue with respect to Professor Miller at the outset of the case, was there not? Didn't you want to do the same?

MR. MUISE: I think that Mr. Rothschild --

THE COURT: I thought you did, because I think some of the -- I may have the wrong witness. But I think some of the demonstrative slides that were shown were not marked as exhibits, and we did have a discussion, unless my memory fails, and you were going to revisit that and mark those up.

So that's fine, but I think what you need to do is, just everybody get on the same page, and I'll take those whenever. I don't need them until the end of the case, obviously. And the same courtesy to Defendants. So if you're going to put the slides up, it will go both ways. But I think it will be helpful for the record.

It is certainly helpful for me to revisit those and to put them back in so, however, you want to reproduce them and then enter them. If you want to do it under one exhibit number with bate stamps or one exhibit number with subnumbers, letters, however you do it, it matters not to me.

MR. WALCZAK: I'm sorry. I guess I'm not understanding. Mr. Muise is saying that it would be okay to enter the entire demonstrative into evidence?

THE COURT: I thought that's what he said, yeah.

MR. MUISE: For demonstrative purposes, Your Honor, to assist the Court, not as substantive evidence in addition to the testimony. It's part and parcel to his testimony is the demonstrative exhibits that are going to be provided to assist the Court.

MR. WALCZAK: So our position is that, we want to go a step beyond that for the photographs and for the charts.

THE COURT: Well, I don't want to waste an excessive amount of time on this, but they were up, and they were up without objection. So I don't know how you separate demonstrative out. I mean, if there's something on the slide -- that's why I said, I think you're going to have to coalesce a little bit on this.

If there's something on the slide that's problematic -- here's what I would suggest you do. Let's cut to the chase. Why don't you get a packet of what you want to introduce. From the defense standpoint, you're going to have to do the same. Share it with opposing counsel.

I guess there could be statements on an individual slide or presentation that may be at issue. And then let's argue over those, if we have to. Otherwise, they come in for all purposes, as far as I'm concerned. That's what you're saying, I think?

MR. WALCZAK: Yes, Your Honor.

THE COURT: Demonstrative? What does that mean in the context of this trial? If they're part of record, they're part of the record. I don't think they come in for a limited purpose. If you think that there's something on the slide, and the same for you as far as their slides are concerned, then I think you should argue over that individual.

MR. MUISE: That's fine. Again, as long as we have the same latitude with our experts.

THE COURT: So I think you have to put a packet together so we see what it is you want to do.

MR. WALCZAK: We'll get that packet together. We'll share it with defense counsel. We'll discuss it. And then only if there are some problems --

THE COURT: Not only with Professor Padian, but any other witness, because I really suspect there are other ones that you may want to put in. And you may, too, in your case-in-chief. All right. Any other exhibits?

MR. WALCZAK: No. Thank you, Your Honor.

THE COURT: All right. Thank you. With that, then we will take your witness. And again, to reiterate, we're going to start the defense case, although the Plaintiffs reserve, by the cordial agreement of all counsel, the right and the opportunity to present some witnesses out of turn at a later point in time.

MR. MUISE: Your Honor, at this time the Defendants call Dr. Michael Behe.



having been duly sworn, testified as follows:

COURTROOM DEPUTY: State your name and spell your name for the record.

THE WITNESS: My name is Michael Behe. M-i-c-h-a-e-l. The last name is B-e-h-e.




Q. Good morning. Could you please introduce yourself to the Court?

A. Good morning, Your Honor. My name is --

THE COURT: I got it.

THE WITNESS: Professor Michael Behe.


Q. Dr. Behe, where do you reside?

A. I live in Bethlehem, Pennsylvania.

Q. Are you married?

A. Yes, I am.

Q. Do you have children?

A. Yes, we do. We have nine children.

Q. And you are a Catholic, sir?

A. Yes, I am, uh-huh.

Q. You share the same religion as Plaintiffs' expert, Dr. Ken Miller, is that correct?

A. Yes, we do.

MR. MUISE: May I approach the witness, Your Honor?

THE COURT: You may.


Q. Dr. Behe, I handed you two binders. One of them has exhibits that are marked that we're going to be working through, through the course of your testimony, so you can refer to those when necessary. Now I'd ask at this time, if you could, just open up that binder and refer to Defendant's Exhibit 249, which should be your curriculum vitae under tab 1; is that correct?

A. That's correct, yes.

Q. Is that a fair and accurate copy of your CV?

A. Yes, it seems to be.

Q. Again, I want you to refer to it as we go through some of your background and qualifications to offer your expert opinions in this case. Sir, what is your profession?

A. I am a professor in the department of biological sciences at Lehigh University in Bethlehem, Pennsylvania.

Q. And you're a biochemist?

A. That's correct, yes.

Q. How long have you taught at the college level?

A. For 23 years.

Q. Now you say you presently teach at Lehigh University, is that correct?

A. That's right.

Q. Have you taught in other colleges?

A. Yes, I taught at Queens College of the City University of New York for three years.

Q. So how long have you taught at the college level?

A. A total of 23 years.

Q. Has that been in chemistry and biochemistry?

A. Yes, both chemistry and biology departments. I'm a biochemist. It fits into both.

Q. So you're a tenured professor at Lehigh University?

A. Yes.

Q. And what subjects have you taught at the college level?

A. A number of subjects. I've taught biochemistry at the undergraduate level. I've taught courses on protein structure and (inaudible) --

COURT REPORTER: Would you repeat that? What did you say after protein structure?

THE WITNESS: Nucleic acid structure.


Q. We're obviously going to be talking about some difficult things throughout this morning, some technical terms. We need to make sure we go slow and articulate those to help out our court reporter here.

A. Sure.

Q. Okay. Could you continue, please?

A. I also taught organic chemistry, general chemistry on occasion. I have taught a, what's called a, college seminar course, a writing course for biology majors, and others as well.

Q. And what are the subjects that you presently teach at Lehigh University?

A. Well, this term, I'm teaching the general biochemistry course.

Q. Have you taught any courses about evolution?

A. Yes, I teach one. It's that college seminar course that I mentioned. It's titled Popular Arguments on Evolution.

Q. And is that a course that's for all majors, is that correct?

A. Yes, it's for incoming freshmen with any background or any intended major.

Q. And during that course, you discuss Darwin's theory of evolution?

A. Yes, it's a discussion course where we read popular arguments on the topic of evolution. We discuss Darwin's theory. We discuss alternative ideas as well.

Q. How long have you been teaching this seminar?

A. Oh, about 12 years now.

Q. So in total, you have 23 years of teaching science at the college and graduate level, is that correct?

A. Yes, that's right.

Q. Now you said you were a biochemist, and we heard testimony from Dr. Miller that he was a cell biologist. What's the difference between a biochemist and a cell biologist?

A. Well, a biochemist studies the molecular bases of life, and sometimes these things blur together, but a biochemist generally studies molecules that are too small to see with a microscope. Cell biology, on the other hand, as its name implies, studies cells, things that can be seen with light microscopes, electron microscopes, and which generally consist of large aggregates of molecules rather than individual ones.

Q. Now we're going to hear some testimony later in this trial from a microbiologist. How does a microbiologist differ from a biochemist?

A. Well, classically microbiology is concerned with single celled organisms, bacteria, viruses, single celled eukaryotic cells as well, and sometimes focuses on the sorts of diseases that those things cause.

Q. Now, sir, do you conduct experiments in your work?

A. Well, at this point, for the past couple years, I've been more interested in theoretical issues rather than experimental ones.

Q. Have you though conducted experimental work in your past?

A. Yes, quite a bit.

Q. Was there a particular focus of your experimental work?

A. Yes, I focused on nucleic acid structure.

Q. Is that the focus of your current research?

A. No, it isn't.

Q. What is the focus of your current research?

A. Currently, I'm interested in the issue of intelligent design in biochemistry and aspects of that.

Q. And how long have you been doing that?

A. Oh, I guess, perhaps the past seven, eight years.

Q. Sir, what degrees do you hold?

A. I have a bachelor of science degree in chemistry from Drexel University and a Ph.D. in biochemistry from the University of Pennsylvania.

Q. And when did you receive your Ph.D. in biochemistry from the University of Pennsylvania?

A. In 1978.

Q. I take it, you wrote a dissertation to get your Ph.D.?

A. Yes, I sure did.

Q. What was that dissertation?

A. It was entitled Biophysical Aspects of Sickle Hemoglobin Gelation. It dealt with the behavior of something called sickle cell hemoglobin, which underlies sickle cell disease, which many people have heard of.

Q. Do you belong to any professional memberships?

A. Yes, I do. I am a member of the American Society for Biochemistry and Molecular Biology. I'm also a member of something called the Protein Society.

Q. Now, sir, have you published articles in peer reviewed science journals?

A. Yes, I have.

Q. Do you have an approximation of how many peer reviewed articles you published?

A. I think at about 38 or 39.

Q. And what are some of the scientific journals that you published in?

A. Well, I have published in Nature, Proceedings in the National Academy of Sciences, Journal of Molecular Biology, the Journal of Biological Chemistry, Biochemistry, Nucleic Acids Research, and some others as well.

Q. Doctor, you're a fellow with the Discovery Institute?

A. Yes, I am.

Q. What does that mean?

A. Well, pretty much it means that, my name gets put on the letterhead, and every now and again, we get together and talk. And it's pretty much a means of communicating with other people who are interested in issues that I am.

Q. Does the Discovery Institute maintain any control over the work that you do?

A. No.

Q. Are you considered an employee of the Discovery Institute?

A. No.

Q. Do they direct you in the work that you do?

A. No.

Q. Now, sir, you're the author of a book called Darwin's Black Box, correct?

A. Yes, that's right.

Q. And that's a book about intelligent design, is that accurate?

A. Yes, that's right.

Q. How many copies has that book sold?

A. Somewhere over 200,000 at this point.

Q. Has it been translated into other languages?

A. Yes, it's been translated, I think, into 10, a little more than 10 languages; Portuguese, Spanish, Hungarian, Dutch, Korean, Japanese, Chinese, and some other ones, too, I think.

Q. Now you also contribute to the 1993 version of the Pandas book, is that correct?

A. Yes, I did.

Q. What was your contribution?

A. I wrote a portion that dealt with the blood clotting cascade.

Q. We've heard testimony about some prior versions of Pandas. Did you make any contributions to any prior versions of the Pandas other than that 1993 version?

A. No, just that second edition.

Q. Now, sir, you've been described as an advocate for intelligent design, is that accurate?

A. Yes, uh-huh.

Q. And you stated that you are a Catholic, correct?

A. Yes.

Q. Is Darwin's theory of evolution inconsistent with your private religious beliefs?

A. No, not at all.

Q. Do you have any religious commitment to intelligent design?

A. No, I don't.

Q. Do you have any private religious convictions that require you to advocate in favor of intelligent design?

A. No, I do not.

Q. Sir, why did you get involved with intelligent design?

A. Well, I used to think that Darwinian theory was a complete and good explanation for life, but in the late 1980's, I read a book by a scientist by the name of Michael Denton. The book was called Evolution: A Theory in Crisis, which raised questions about Darwinian theory that I had never thought about before. At that point, I began to think that it might not be an adequate scientific explanation as much as it was claimed; and at that point, I began to think more about these topics and think about the topic of intelligent design as well.

Q. Is your interest in intelligent design based on what the scientific evidence shows?

A. Yes.

Q. Sir, are you familiar with a term called young-earth creationist?

A. Yes, I've heard.

Q. Do you consider yourself to be a young-earth creationist?

A. No, I'm not.

Q. Are you familiar with the term old-earth creationist?

A. I've heard that one, too.

Q. Do you consider yourself to be an old-earth creationist?

A. No, I do not.

Q. Are you familiar with the term special creation?

A. Yes, I've heard it.

Q. Do you consider yourself to be a -- I'm not sure if the term is a special creationist or a creationist in terms of special creation. Either way, do you consider yourself that?

A. Neither one, no.

Q. As you testified to, you authored Darwin's Black Box, which is a book about intelligent design. And we have up on the screen. Is that what's shown up on the screen, is that exhibit, is that demonstrative, is that a picture of the cover of your book?

A. Yes, that's a picture of the hard cover edition of the book.

Q. What is the subtitle?

A. It's called The Biochemical Challenge to Evolution.

Q. Now you use the term black box in this book. Does that have a particular meaning in science?

A. Yes. In science, it's used sometimes to indicate some system or some structure or some machine that does something interesting, but you don't know how it works. You don't know how it works because you can't see inside the black box and, therefore, can't figure it out.

Q. So what's the connection then with Darwin's Black Box?

A. It turns out that in Darwin's day, the contents of the cell were unknown. People could see it do interesting things. It could move. It could reproduce and so on. But how it could do that was utterly unknown. And many people at the time, many scientists at this time such as Ernst Haeckel and others, Thomas Huxley thought that, in fact, the basis of life, the cell, would be very simple, that it would turn out to just be a glob of protoplasms, something akin to a microscopic piece of Jell-O.

But in the meantime, in the past 150 some odd years, science has advanced considerably and has determined that the cell is, in fact, full of very, very complex machinery. And so the Black Box of the title is the cell. To Darwin and scientists of his time, the cell was a black box.

Q. Now when was this book published?

A. It was published in 1996.

Q. And if you could, give us sort of the Reader's Digest summary of what's in this book?

A. Well, in brief, in Darwin's day, the cell was a -- an obscure entity, and people thought it was simple, but the progress of science has shown that it's completely different from those initial expectations, and that, in fact, the cell is chock full of complex molecular machinery, and that aspects of this machinery look to be what we see when we perceive design.

They look like they are poorly explained by Darwin's theory. And so I proposed that a better explanation for these aspects of life is, in fact, intelligent design.

Q. So again, this is a book about intelligent design?

A. Yes.

Q. Did you write this book to make a theological or philosophical argument?

A. No.

Q. What was the purpose of writing the book?

A. The purpose of the book was to say that the physical empirical evidence, the scientific evidence points to a conclusion of intelligent design.

Q. I take it that, this book does address Darwin's theory of evolution?

A. Yes, it does.

Q. Does it do so by relying on scientific data and research?

A. Yes, it does.

Q. Sir, is it accurate to say that, in this book, you coined the term irreducible complexity?

A. Yes.

Q. Had you used that term previous to the publication of this book?

A. Not in any publication that I can remember.

Q. Through the writing of this book, did you become familiar with the scientific evidence as it relates to the Darwin's theory of evolution?

A. Yes, I did.

Q. Sir, was this book peer reviewed before it was published?

A. Yes, it was.

Q. By whom?

A. Well, the publisher of the book, Free Press, sent it out to be -- sent the manuscript out to be read prior to publication by five scientists.

Q. What were the backgrounds of some of these scientists?

A. One is a man named Robert Shapiro, who is a professor in the chemistry department at New York University and an expert in origin of life studies. Another man was named Michael Atchinson, I believe, and he's a biochemistry professor, I think, in the vet school at the University of Pennsylvania.

Another man, whose name escapes me, I think it's Morrow, who was a biochemistry professor at Texas Tech University. Another biochemist, I think, at Washington University, but his name still escapes me. And I have forgotten the fifth person.

Q. Now did you suggest any names of reviewers for the publisher?

A. Yes, I suggested names, uh-huh.

Q. From your years as a scientist, is that a standing practice?

A. It's pretty common, yes. A number of journals, a number of science journals require an author, when submitting a manuscript, to submit names of potential reviewers simply to help the editors select reviewers. Oftentimes, the editor is not really up-to-date with who's working in which field.

Q. Dr. Padian, if my recollection is correct, testified on Friday that it wasn't a standard practice to identify potential reviewers for your work. How do you respond to that?

A. Well, Professor Padian is a paleontologist. Maybe I'm not familiar with paleontology journals. Perhaps in those, it's not common. But it certainly is common in biochemistry and molecular biology journals.

Q. Now after this book was published, was it reviewed by scientists?

A. Yes, it was reviewed pretty widely.

Q. And some criticisms were offered, is that correct?

A. Yes, that's fair to say.

Q. Did you respond to these criticisms?

A. Yes, in a number of different places.

Q. Did you respond to them at all in any articles that you published?

A. Yes, I've published several articles. One, I published, which is perhaps the most extensive, is called a Reply to My Critics in Response to Reviews of Darwin's Black Box.

Q. Sir, if you could look in that binder that I gave you at Defendant's Exhibit 203-H. And I believe it should be under tab 2 in front of you.

A. Yes, thank you.

Q. Is that the article you are referring to?

A. Yes, this is it.

Q. And when was this article published?

A. That was published in the year 2001.

Q. And where was it published?

A. In a journal called Biology and Philosophy.

Q. Is that a peer reviewed journal?

A. Yes, it is.

Q. What kind of journal is it?

A. It's a philosophy of science journal.

Q. Now we have heard testimony in this case about peer reviewed science journals. Are science journals the only medium by which scientists publish their scientific ideas and arguments?

A. No, scientists publish other ways as well.

Q. Do they publish their ideas and arguments in books, for example?

A. Yes, that's certainly a prominent medium by which to publish scientific arguments.

Q. Does the scientific community take science books seriously?

A. They certainly do.

Q. Have you prepared some exhibits to demonstrate this point?

A. Yes, I do. If you can show the next slide, please. This is a -- the table of contents from an issue of Nature from May of this year. And if you could advance to the next slide, this is a blow-up of a part of the portion. You can see that this is the spring books issue. In every issue of Nature, they review at least one or two different books on scientific topics.

Once or twice a year, they have a special issue in which they concentrate on books. Altogether, Nature reviews perhaps 100 to 200 science books per year.

Q. This is the prominent Nature magazine that we've heard some testimony about here in court?

A. Yes, Nature is the most prominent science journal in the world.

Q. Have you provided some examples of some books where scientists are making scientific arguments?

A. Yes, to help see what's -- what is done here, if you could go to the next slide. These are some relatively recent books by scientists making scientific arguments. For example, up on the upper left-hand corner is a relatively new book called Rare Earth by a couple of scientists at the University of Washington named Peter Ward and Donald Brownlee.

In this book, they argue that the position of the Earth in the universe is so rare, so special, because of factors such as its existing in a portion of the galaxy where heavy metals are relatively common, where super novas are not so common, that it may be one of the few places, perhaps the only place in the universe where intelligent life could exist.

Up on the upper right-hand portion of the slide is a book entitled The Fifth Miracle by a physicist by the name of Paul Davies who writes about -- often writes about physical topics such as The Big Bang and the laws of nature and so on. In this, he reviewed the literature on the origin of life, and concluded that, currently, we have no understanding of how life could have originated on the earth. And he says that a completely new understanding or completely new ideas on that topic are required.

On the bottom left-hand corner of the slide is a picture of the cover of a book called At Home in the Universe by a man named Stuart Kauffman, who is a professor of biology at the University of Toronto currently. And in this, he explains his ideas about something called self-organization and complexity theory. And he writes why he thinks Darwinian mechanisms are insufficient to explain what we know about biology.

On the lower right-hand corner of the slide is a relatively new book called Endless Forms Most Beautiful, subtitled The New Science of Evo Devo, which stands for evolutionary developmental biology.

Q. Now my understanding from the testimony from Dr. Padian on Friday, that's a fairly up and coming area in scientific research?

A. Yes, that's right. It's generated some excitement, uh-huh. And this is written by a man named Sean Carroll, who's a professor of biology at the University of Wisconsin. And in this book, he gathers a lot of data and cites a lot of papers to argue the case that, in fact, much of evolution is not due to changes in protein structure as had once been thought, but perhaps is due to changes in regulatory regions that tell the cell how much of a particular protein to make.

If we could go to the next slide then. Here are four more books of scientists making scientific arguments. The top two are by the same author. The first one might be difficult to read. It's Richard Dawkins on the top left and the top right. His book here is entitled The Selfish Gene. And in this book, he argues that evolution is best understood not at the organismal level, but rather at the level of the gene, a fragment of DNA which can be replicated.

On the upper right is another book by Dawkins entitled The Extended Phenotype in which he argues that genes cannot only affect the body of the organism in which they reside, but can affect the larger environment as well.

And I think a good example he uses is that of a beaver in which, presumably, genes in the beaver's body push it to cut down trees and build dams thereby affecting the environment. I'm not sure if I mention, but Richard Dawkins is a professor of biology at Oxford University in England.

I have a copy of the cover of my book there in the lower left, which I include in this category. On the lower right-hand side is a book called The Astonishing Hypothesis, The Scientific Search for the Soul, which is a written by a man named Francis Crick, who is a Nobel laureate, Nobel Prize winner who, along with James Watson, first deduced the double helical structure of DNA.

And in this book, he argues that, in fact, what we call the mind, or what some people think of it as the soul, is, in fact, in actuality the effects the chemical and neurological processes in the brain.

Q. Do you have several more slides?

A. Yes, I do. Actually, the next slide here, I wanted to concentrate a little bit on this book, which is a brand new book published about a month or two ago, and it's entitled The Plausibility of Life, and it's subtitled Resolving Darwin's Dilemma. It's written by two authors, a man named Mark Kirschner, who is a chairman of the department of systems biology at Harvard University Medical School, and a man named John Gerhart, who is a biology professor at the University of California at Berkeley.

And Darwin's dilemma that they proposed to resolve in this book is that, in Darwinian theory, natural selection needs a source of variation to select among. And they argue that random variation is insufficient to supply that. And instead, they offer arguments for, what they call, a form of essentially directed variation.

But what I want to concentrate is on some text that they have in the beginning of the book. Let me just read this. They write, quote, This book is about the origins of novelty in evolution. The brain, the eye, and the hand are all anatomical forms that exquisitely serve function. They seem to reveal design. How could they have arisen?

Let me make a couple points about this. First of all, they treat the origins of novelty as a live question. This is something that is currently unresolved. And the further point is that, they think that the physical structures of these forms seem to, in their words, reveal design.

Q. Now this book was published by Yale University Press, is that correct?

A. Yes, that's right.

Q. That's an academic press?

A. Yes, it is, a very prestegious one. If we could look at the next slide. They go on further in their introduction to make some points that I thought would be useful to make here. In this, they say, In this book, we propose a major new scientific theory, which they call facilitated variation. Let me just emphasize that the point that, in fact, these eminent biologists are saying that they are proposing a new theory, and the means by which they are proposing that new theory is to write about it in this book.

And if you look further along on this slide, they write, quote, We present facilitated variation not only for the scientist, but also for the interested nonscientist.

So the point is that, scientific books can propose new scientific theories, and they can be addressed to a broad audience, not only to scientists, not only to specialist groups, but also to the wider public as well.

And if we can go to the next slide. They explain in this slide why, in fact, they use the language that -- kind of language that they use in their book.

They write, quote, Even if we had tried to confine the message to professional biologists, we would have had problems. In which subfield would this book be understood? We decided that a common, straightforward vocabulary was essential just to reach scientists as a group. To move beyond scientists to the lay public required further adjustments, but fewer than one might expect.

So the point here is that, if you are addressing a scientific topic which cuts across subdisciplines, the subdisciplines, which might have their own specialized vocabulary, the best way to do it might be to write the book in plain English or as in plain English as is possible. That's what Kirschner and Gerhard tried to do.

Q. Is that what you, in fact, tried to Darwin's Black Box?

A. That's exactly what I tried to do.

Q. You authored numerous peer reviewed articles, many in scientific journals, which you eluded to previously. Is there one area in which you have published the most in these science journals?

A. Yes, nucleic acid structure.

Q. Have you authored any articles appearing in peer reviewed science journals that make intelligent design arguments?

A. Yes, I did, one.

Q. What article is that?

A. It was an article that I published with a man named David Snoke, who's in the physics department at the University of Pittsburgh, and was published in a journal called Protein Science.

Q. Sir, again, I would direct your attention to the exhibit book that was provided. And if you look under tab 3, there should be an exhibit marked Defendant's Exhibit 203-J. Do you see that, sir?

A. Yes.

Q. Is that the article you're referring to?

A. Yes, that's right. It's entitled Simulating Evolution by Gene Duplication of Protein Features That Require Multiple Amino Acid Residues.

Q. Again, you said that was published in Protein Science?

A. Yes.

Q. A peer reviewed science journals?

A. Yes, that's correct.

Q. And published in 2004?

A. That's right, last year.

Q. Could you give us a thumbnail sketch of what that article is about?

A. Yes. It's a theoretical study that uses models to describe the process of protein evolution of new features, and we say that it seems to present, focus on problems for Darwinian evolution.

Q. Now you stated that you consider this to be an intelligent design article, is that correct?

A. Yes, I do.

Q. And why is that?

A. Because it asks questions about how much unintelligent processes can explain in life and, therefore, points our attention to what intelligence is required to explain as well.

Q. Now we eluded to a concept of irreducible complexity, a concept that you introduced in your book, Darwin's Black Box. Did you use the term irreducible complexity -- let me back up. Did you use the concept of irreducible complexity in this particular paper?

A. Yes, I did.

Q. Did you actually use the term irreducible complexity in this paper?

A. No, in fact, we did not use that term.

Q. Why not?

A. Well, in the original manuscript as we had written it and sent it to the journal Protein Science, the term did, in fact, appear. But one of the reviewers of the manuscript told us to remove the term from the manuscript and find another description for what we were trying to focus on.

Q. Why did he tell you to remove that term?

MR. ROTHSCHILD: Objection, Your Honor. We haven't been produced any of these materials, these drafts, or any responses to the drafts.

MR. MUISE: Your Honor, I don't know why they need a copy of the draft. He was asked about these questions during his deposition about this particular article. I'm just -- I'm not recounting any drafts. They, obviously, have a copy of the article.

MR. ROTHSCHILD: We do have a copy of the article, Your Honor, but if they're going rely on this exchange here, I think they have to produce the evidence that it actually occurred.

THE COURT: If he's going to talk about a manuscript, that could be a problem.

MR. MUISE: Well, Your Honor, he's only eluded to that he made changes on this particular article based on recommendations from the editorial board. And I asked him why they asked him to make those changes on it. He was asked these same questions during his deposition, Your Honor. It's kind of surprising they're objecting to this.

MR. ROTHSCHILD: This did come up in the deposition. But if they're going to rely on this as evidence, as this being actually an article about irreducible complexity, and this is the evidence they're going it rely upon, then they got to produce the evidence. Otherwise, it's hearsay.

THE COURT: What are you asking they produce?

MR. ROTHSCHILD: The manuscript that Dr. Behe sent which used the term irreducible complexity and any written responses that they received.

THE COURT: Are you saying that there is a discovery request that could arguably have been intended to cover production of that manuscript and you didn't get it or -- I guess Mr. Muise's point is, you didn't ask for it.

MR. ROTHSCHILD: Well, I mean, there's no discovery request that specific. Though we're entitled to the materials that the expert relies upon as the basis for his opinion, which, as a general matter, has certainly been exchanged by both sides and were cited in reports and exchanged.

And this is an instance where I don't -- I don't believe the burden is on the Plaintiffs to request documents because the issue is, if you're going to bring hearsay into this case, which is what Dr. Behe is doing, or counsel is doing for a very substantive point, then I object that it's hearsay and --

THE COURT: That is the change to the manuscript?

MR. ROTHSCHILD: The change to the manuscript and any response which, I think, Professor Behe is portraying as the reason why an article about irreducible complexity suddenly became an article not about irreducible complexity.

MR. MUISE: I don't believe that's what he received to. He said he discussed the concept of it. He was told to take the word out in one of the drafts, and so he did. And the article that they have a copy of is the one that the article came out. They were asked, they asked him those same questions. He said the same thing. The the editor told me to take the word out.

THE COURT: Do you have the manuscript?

MR. MUISE: I don't have it here with me, Your Honor. I'm not sure if that manuscript is still here. Again, the point is, it's the editorial, the editor told him that, and that's all he's testified to.

MR. ROTHSCHILD: It's hearsay.

THE COURT: Isn't that hearsay?

MR. MUISE: Well, Your Honor, as we've gone through time and time again, the experts can rely on hearsay when they're formulating opinions. And it's an explanation of why this concept is not going to be in there.

And I'm certain that Mr. Rothschild is going to cross-examine him as to why that concept is not in here, and it's just making it plain. The editor told him to take the term out, argue the concept, but take the term out.

MR. ROTHSCHILD: This is exactly the point, Your Honor. I mean, this is not the kind of hearsay that an expert in biochemistry or intelligent design would rely upon, which is presumably other scientific materials. This is a personal exchange about what happened with this article. And I would like to cross-examine him about it. But this is hearsay, and I don't have the evidence.

THE COURT: Well, I do think the quality -- I think you attempt to equate this hearsay with the hearsay that might otherwise be allowed with an expert. I think there is a distinction here. And I think this is hearsay arguably that's of a quality that ought not be admitted.

MR. MUISE: Your Honor, it's also -- it's offered to demonstrate what it is, why he took that term out. I mean, you don't have to even rely --

THE COURT: Isn't that a highly material point?

MR. MUISE: It certainly explains his actions why he did that.

THE COURT: Sure. But I think that the hearsay that we're talking about is a different type of hearsay than the hearsay that might customarily be that an expert's report might customarily be predicated on. I see a distinction. I understand Mr. Rothschild's point.

Well, let me ask you this. If Mr. Muise produces the manuscript for the purpose of -- is it in the building, the manuscript? Does it exist here?

MR. MUISE: Your Honor, I'd have to consult with Dr. Behe about whatever the letter exchanged, if there's anything available.

THE COURT: If you can't produce a manuscript for the purpose of cross examination, then I'll sustain the objection at this point, and you can move on.


Q. Dr. Behe, with the article that was actually published, did you discuss the concept of irreducible complexity?

A. Yes.

Q. But the term itself was not included in there, correct?

A. That's correct.

Q. Have you submitted any other articles on intelligent design to peer reviewed science journals?

A. Yes, I did. One article I submitted to a journal called the Journal of Molecular Evolution. And it actually contained a subset of the material that was eventually published in the article or Reply to my Critics in the journal of Biology and Philosophy.

Q. Did they publish that article in that journal?

A. No, they didn't.

Q. Did the publisher give you a reason for not doing so?

A. Yes, he did.

MR. ROTHSCHILD: Objection, Your Honor. The same hearsay.

MR. MUISE: Your Honor, it kind of remarkable to me. He's -- you've heard throughout this trial that, you know, they are not submitting their articles for peer review. Here, he's attempting to do that, and he's got publishers that are telling him that they're not going to publish them.

And I'm enlisting from him what it is the publishers are telling him why these things aren't being published. That's entirely relevant to this -- to these proceedings.

THE COURT: But it's hearsay.

MR. MUISE: He can certainly testify to that because that demonstrates what he -- what he was told, and what the effect of that is, is relevant. It doesn't necessarily even have to go to the substance of the conversation. It goes to what is being told as to why these peer reviewed journals are not being published.

MR. ROTHSCHILD: I think the fact that they are being rejected by peer review publications are certainly relevant, and he can testify about that, because that's what happened to him. But the reasons are being introduced for the truth. This is why we are rejecting it.

THE COURT: I agree with that. The objection is sustained.


Q. Sir, do you perceive a bias against publishing intelligent design articles in science journals?

A. Yes, I do.

Q. Could you explain?

A. It's based on my personal experiences trying to publish such material. It's based on conversations with other people. It's based on news stories about persons who did, in fact, publish an article mentioning intelligent design. So, yes, I do.

Q. Now, sir, you had a part in drafting a section contained in the 1993 version of Pandas, correct?

A. Yes.

Q. I believe you testified it was the blood clotting section?

A. Yes, that's correct.

Q. Is that section still valid based on current scientific evidence?

A. Yes, it is.

Q. Did you write about the blood clotting cascade in Darwin's Black Box?

A. Yes, I did.

Q. Is that section similar to the blood clotting cascade section you wrote in Pandas?

A. Yes, it's similar. It's lengthier, but it's similar. Yes.

Q. I believe you testified you didn't contribute to any parts of the prior drafts of Pandas, is that correct?

A. That's correct, just to this one.

Q. In the blood clotting cascade section of Pandas, were you advancing any religious or philosophical arguments?

A. No, I was not.

Q. What were you doing in that section?

A. I was making a scientific argument that the blood clotting cascade is poorly explained by Darwinian processes but is well explained by design.

Q. Now is it your understanding that this book Pandas is part of the controversy in this lawsuit?

A. Yes, I understand that.

Q. What is your understanding of how this book will be used at Dover High School?

A. I understand that there is a short statement that is read to students that says that the book Of Pandas and People is available in the school library for students to access.

Q. Do you see that as a good thing?

A. Yes, I do.

Q. Why?

A. Because the book Of Pandas and People brings a different viewpoint, a different perspective to the same data that is viewed oftentimes through a Darwinian perspective, and it can show students that viewing data from different directions oftentimes can affect how we judge the strength of data, how we judge the problems associated with a particular viewpoint and so on.

Q. Now this book was published in 1993, correct?

A. Yes.

Q. And you're aware that Dr. Miller has criticized several sections in this book?

A. Yes, I heard him.

Q. Do you intend to address his claims in your testimony today?

A. Yes, I intend to, yes.

Q. Of the sections that he addressed, are they still scientifically valid?

A. Yes, they are.

Q. Now would you recommend this book as a primary text for biology class?

A. No, I wouldn't recommend it as a primary text. It's not intended as a primary text.

Q. Any other reasons?

A. Well, yes. It was written in 1993. And so science advances pretty quickly, and so it's not appropriate for use as a primary text because of that.

Q. Has intelligent design advanced since 1993?

A. Yes, it certainly has.

Q. Would you recommend that it be used in the manner that Dover High School is using it?

A. Yes, I think that's a fine way to use it.

Q. And I believe for the reasons you stated previously in your testimony?

A. Yes, that's right, because it gives students a different perspective on data, allows them to separate data from theory, allows them to view problems from different perspectives, and some people who think one theory is correct will oftentimes view problems as less severe than people who view the data from a different perspective.

Q. Do you think that schools should teach the theory of evolution?

A. Yes, I certainly do.

Q. And why is that?

A. Well, the theory of evolution is widely used in science. It is, in many aspects, well substantiated. It's used by working scientists and any well-educated student should understand it.

Q. By advocating intelligent design, is it your goal to not have the theory of evolution taught in the biology class?

A. No, certainly not.

Q. Has that ever been your goal?

A. Never, no.

Q. Now Dr. Miller testified on direct as follows: Quote, It's important to appreciate as well what peer review actually means. And what it means is subjecting your scientific ideas to the open scrutiny and criticism of your colleagues and competitors in the field, end quote. Do you agree with that?

A. Yes, wholeheartedly.

Q. Have you subjected your scientific ideas on intelligent design to open scrutiny and criticism of your colleagues and competitors in the field?

A. Yes. I have to say that my ideas on intelligent design have been subjected to about a thousand times more scrutiny than anything I've ever written before.

Q. And how have you subjected your ideas to such scrutiny?

A. Well, in a number of ways. I've written those papers that were described earlier here. I wrote the book itself. The book has been reviewed. It was sent out earlier to be reviewed. And also, I've been, since the book was published, giving seminars, engaging in discussions and so on before academic groups.

Q. And have you had -- have you prepared some slides to demonstrate this point?

A. Yes, I have. Here is a selection of a number of seminars and discussions that I've had specifically with academic groups on my ideas about intelligent design since the book was published. Soon after the book came out in the summer of 1996, I spoke with the department of biology at a place called King's College, which is near Lehigh in Wilkes-Barre.

Q. Again, these are with academic or science groups, is that correct?

A. Yes, these are exclusively academic groups.

Q. Included in these seminars are other scientists?

A. Yes. A seminar in a department like this normally involves much of the faculty of the department, graduate students, undergraduates, and so on. Sometimes faculty from other departments as well.

Q. Could you continue, please?

A. Yes, the text in bold are seminars and talks to science departments. So the department of biology at the University of South Florida, I gave a talk in 1996; at the department of chemistry at Villanova University; the department of philosophy, there was a symposium with a man named Daniel Dennett and a man named David Haig held at the University of Notre Dame.

Now that's underlined. I underlined talks in which opposing speakers were there presenting alternative points of view. And David Haig is a professor of evolutionary biology at Harvard University. Daniel Dennett is a philosophy professor at Tufts University, and has published several books on Darwinian thought and its philosophical ramifications.

Q. Now that was in the department of philosophy. But did you also -- did you argue the scientific arguments?

A. Yes. Myself and David Haig made scientific arguments, and Daniel Dennett made both scientific and philosophical arguments. I should add that a number of philosophers are oftentimes interested in scientific ideas and seek philosophical implications for them. So I do get invitations from philosophy departments as well.

Q. Continue, please.

A. There was a symposium held at a school called Wheaton College, and participants in that symposium included a man named James Shapiro and David Hull. James Shapiro is a professor of microbiology at the University of Chicago. And while he's skeptical of Darwinian theory, he is not a proponent of intelligent design. So he presented an alternative point of view. David Hull is a philosopher of biology at Northwestern University and a firm believer in Darwinian theory.

Also, I gave a presentation to the department of mathematics at the University of Texas, El Paso, in 1997.

Q. Is there -- I mean, is there a relationship between science and mathematics?

A. Yes. Yes, there certainly is. Mathematics is called the language of science. Practically all scientists rely on mathematics for their work and it -- mathematics is used to reach conclusions and to view evidence and to marshal arguments.

Next slide, please. A couple more. The department of chemistry at Colgate University in 1997; the department of philosophy, they have a place called Saint Norbert College in Wisconsin. They have a lecture series called the Killeen Chair Lecture. They invited me to present under that lecture series. That was in 1998.

I presented to the department of genetics at the University of Georgia in February of 1998; the department of biochemistry at the University of Minnesota, May 1998; the department of chemistry and biochemistry at the University of South Carolina in 1999; and at the University of Massachusetts, there was a panel discussion held with Professor Lynn Margulis.

Lynn Margulis is a very prominent biologist, a member of the National Academy of Sciences, who has questioned aspects of Darwin's theory. She and I gave 15 minute presentations, and then there was a panel discussion with a number of panelists, which included the chancellor of the university, David Scott. It was presented in front of an audience of about 1000 members of the university community.

Q. Again, in these discussions and seminars that we're going to be reviewing here, you're arguing regarding the scientific evidence for intelligent design, is that correct?

A. That's correct, yes. Next slide, please. 1999, I gave a presentation at the department of biochemistry at the Mayo Clinic; in April of that year, I talked to the Brooklyn section of the American Chemical Society.

Q. What is that?

A. Well, the American Chemical Society is the largest organization of professional chemists in the country, and they have, of course, many local sections. And the invitation for this was from the Brooklyn section of the ACS.

Q. Continue, please.

A. One of the members of the ACS in Brooklyn is also on the faculty of the department of chemistry at a place called Saint Francis College in Brooklyn, and I also then spoke the next day to the department of philosophy at Saint Francis College. I spoke in the summer of 1999 to a Gordon Research Conference on organic reactions and processes.

Gordon Research Conferences are very prominent meetings of scientists on very many different topics. And oftentimes, they're usually attended by between 100 and 200 scientists. And I received an invitation to speak in front of this group. In February of the year 2000, I was invited by an organization called the Royal Society of Medicine, which is in England, to speak at something called an -- a conference on evolution and Darwinian medicine.

The Royal Society of Medicine is an organization of physicians and scientists in England that sponsors a large number of conferences. This particular conference was focused on, as its title suggests, what evolution, and in particular, Darwinian theory has to say about diseases and medicine.

I debated and discussed the topic of Darwinian evolution and design with a man named Robert Fowley, who was a paleontologist and a member of the Royal Society in England, which the Royal Society is akin to the National Academy of Sciences in the United States.

The next one. In April of the year 2000, I gave a plenary lecture to a conference that was held at Baylor University entitled The Nature of Nature Conference.

Q. Who participated in that conference?

A. This was a large conference with, I think, 50'ish, 50 or so invited speakers in it. It was one of the most eminent conferences that I have ever been to. The topic was The Nature of Nature. It was very widely construed.

There were academicians there from a large variety of different disciplines. There were physicists there, such as Alan Guth (phonetic), who is a member of the National Academy of Sciences and a professor of physics at MIT, discussing the nature of the universe, whether the universe is eternal, whether it is undergoing something that he calls inflation, or whether it began in time.

There were conversations on that. There were philosophers who discussed the question of whether the mind is a physical object or whether it is not. There were mathematicians there to discuss the topic of whether the fit between mathematical theory and nature, which seems to, many of them, to be uncanny is unreasonable to expect or whether it is reasonable.

And, of course, there were also people there discussing Darwin's theory of evolution and intelligent design. I participated in a session on biochemistry and design and Darwinian evolution. And if I recall the order correctly, the first speaker in my session -- there were four speakers.

The first speaker was a man named Simon Conway Morris, who is a paleontologist at Oxford University in England and a fellow of the Royal Society. Again, a fellow of the Royal Society is akin to a member of the National Academy of Sciences in the United States.

And I think afterwards, I presented. And then I think up next was a man named Mark Tashney, who is a biology professor at Memorial Sloan-Kettering Medical Center in New York City. And he is a member of the National Academy of Sciences in the United States and also a biochemist.

And the last person speaking in our session was a man named Christian DeDuve, who is a Nobel Prize winner and also a biochemist who teaches at the Catholic University of Louvan in Belgium.

Q. Now we heard testimony in this case, I believe it was from Dr. Forrest, and she described that conference as a creationist conference. How do you respond to that?

A. Well, it would surprise many of the speakers there. I would say that, that's simply ludicrous. And I think it says more about the person making such a comment than it does about the conference itself.

Q. Let's go to the next slide. In here, you have a few underlined in red. What is the purpose of that?

A. Yes, I put in red conferences in which other expert witnesses who are going to be testifying at this trial have participated. For example, in the summer of the year 2000, there was a conference held at a place called Concordia College in Wisconsin, which includes myself, Ken Miller, and Scott Minnich, who, I think, will be up later.

In the fall of 2000, I presented a lecture at Catholic University on the general title Fides et Ratio and Scientific Inquiry. Fides et Ratio is the title of an encyclical which was written by Pope John Paul, II, and this was a commentary on the encylical plus a commentary on the relationship of science and religion.

Q. Fides et Ratio means faith and reason?

A. Yes, that's right. It's Latin for faith and reason.

Q. I believe the encylical, was that what Dr. Miller had referred to or testified to?

A. Yes, I heard him mention the encylical in his testimony.

Q. Continue, please.

A. I presented at the department of biology at Wilkes University, which is, of course, close to Bethlehem at the invitation of a former student in the department of biology at Lehigh, who is now on the faculty there; Los Alamos National Laboratories in March of 2000; I participated again in a conference at Haverford College, which was sponsored by the American Association for the Advancement of Science. And they title it Interpreting Evolution. And I spoke there along with Ken Miller and also Warren Nord, who, I believe, is going to testify in this trial.

Q. So the American Association for the Advancement of Science put on a seminar entitled Interpreting Evolution, and you were permitted to be one of the speakers there?

A. I was invited, not just permitted.

Q. Okay. Continue.

A. I spoke with the deans of the medical school at the University of New Mexico. I presented at a meeting of the Protein Society in Philadelphia. That doesn't have a date there. But that was also in the year 2002.

Q. Now was that presentation related to that article that you wrote with David Snoke?

A. Yes, that's correct. This was a presentation, actually a poster session, which laid out the data and the ideas which would later be written up and sent out and published as that paper.

Q. And this is one of those professional organization's annual meetings?

A. Yes, that's right. This is a meeting of the Protein Society. I guess there was about a thousand people there. It was presented in something called a poster session, like many other presentations there.

Q. Next slide.

A. In the spring of the of the year 2002, the American Museum of Natural History in New York City sponsored a panel discussion and debate between my -- with myself and William Dembski on one side speaking of intelligent design, and Kenneth Miller and Robert Pennock on the other side advocating Darwinian evolution. This was well attended. Several hundred people, scientists, members of the community.

In the fall of the year 2002, a man named William Provine, who is a professor of the history of science and also a revolutionary biologist at Cornell University invited me to come and present a lecture to his introductory class on evolutionary biology.

Q. And who is -- is Professor Provine an intelligent design advocate?

A. No. Professor Provine is a very, very strong advocate of Darwinian evolution.

Q. He invited you though to come up and give a presentation to his biology class at Cornell University?

A. That's right. I gave an entire lecture of 45 to 50 minute lecture, I believe.

Q. Did he explain to you why he wanted you to come on up?

A. Yes.

MR. ROTHSCHILD: Objection, hearsay.

MR. MUISE: Your Honor, he's going to explain why he came up and his understanding as to why he was given the presentation.

MR. ROTHSCHILD: Exactly my objection.

THE COURT: I'll allow it. I'll overrule the objection.

THE WITNESS: His stated purpose was that he wanted students in the class to hear an alternative view to Darwinian evolution so that they could better make up their minds which they thought was more accurate.


Q. Apparently, he didn't consider this was going to cause some harm to his students?

A. No, his opinion --

MR. ROTHSCHILD: Objection.

THE COURT: Sustained. Sustained.


Q. Go to the next one, please.

A. Yes, there's a college called Hillsdale College in Michigan. They sponsor a lecture series for their students every year in something called the Center for Constructive Alternatives. They sponsored a lecture series on intelligent design. And I was one of the participants.

Chestnut Hill College in Philadelphia, they have a lectureship for students who are going to enter biomedical professions. I was invited to speak before that group. I was invited to speak before the department of department of biochemistry and biophysics at the University of California, San Francisco, in the year of 2003.

In 2004, the Claremont-McKenna College in California has a lecture series called the Atheneum series, and in that year, it was a series on intelligent design. I spoke at that. And, I believe, later on, Eugenia Scott spoke in the same series, and Professor Scott -- or Dr. Scott is a, I think, the director of the National Center for Science Education.

Q. Now you made -- now these are presentations that were given to academic groups, scientific groups, is that correct?

A. Yes, these are specifically ones before academic groups.

Q. Focused principally on areas of science, is that correct?

A. Yes, that's correct.

Q. You also made presentations in other settings, is that correct?

A. Yes. I've given a number of other lecture as well before most any group that would invite me, including many student groups.

Q. You gave a presentation at Dover High School, is that correct?

A. Yes, in the spring of this year, I gave a seminar in Dover High School.

Q. Now you're a member of the American Society for Biochemistry and Molecular Biology, correct?

A. Yes, that's right.

Q. Now Plaintiffs' experts, and Dr. Forrest, and Dr. Miller have criticized you for not taking the opportunity to present your argument for intelligent design at the Society's annual meetings. How do you respond to that criticism?

A. Well, I think it's disingenuous for a couple of reasons. The first reason -- all three reasons, let's put it that way. I'm a member of the Protein Society, and I did present my work before a meeting in the Protein Society in the year 2002, I believe.

Number 2, Professor Miller and I appeared on a show called Firing Line on the public broadcasting system that was hosted by William Buckley at that point to debate and discuss the topic of evolution and intelligent design. And on that show, Professor Miller said --

MR. ROTHSCHILD: Objection, Your Honor, hearsay.

MR. MUISE: Your Honor, it's going directly to the point -- I mean, you'll understand when he continues his testimony that they had a joint agreement. They submitted a joint request to do this. And this was denied. So, I mean, Dr. Miller had -- he's recounting a conversation he had with Dr. Miller, which is going to explain the actions that he took.

THE COURT: What joint agreement?

MR. MUISE: Your Honor, he's responding to -- Plaintiffs' experts have criticized and particularly criticized him --

THE COURT: I understand what you're doing, but he's about to recite something that Dr. Miller said on Firing Line that sounds to me like it's going to be hearsay.

MR MUISE: No, Your Honor, it's going to explain subsequent actions. It's going to be like if somebody said, you know, I went to the store because he asked me to go to the store. It's explaining subsequent conduct.

THE COURT: Where is that in the hearsay exceptions? Is it a present sense impression?

MR. MUISE: It explains his actions, Judge. It explains why he's done, why he's going to take the actions that he did. You'll get Dr. Miller complaining that they're not presenting. He challenges them. That's all he's going to testify to. And he's going to testify that they wrote a joint letter and submitted it off. It explains the purpose of the joint letter.

THE COURT: He can say that they wrote a joint letter. I understand that. That's not what he's about to do. He's about to apparently quote Dr. Miller, Professor Miller chapter and versus what he said. I'll sustain the objection.

MR. ROTHSCHILD: And the letter hasn't been produced either, Your Honor.

THE COURT: Well, we'll get to that. Let's not anticipate what we don't have. I'll sustain the objection to that question.


Q. Have you been challenged to give a presentation at one of these annual meetings?

A. Yes, I have.

Q. Who challenged you?

A. Professor Ken Miller.

Q. How did you respond to that challenge?

A. I said I'd be delighted to make a presentation before any group of scientists.

Q. Did you follow that up, take any action on that?

A. Yes, I did. I co-signed a letter with Professor Miller addressed to the Presidents of the American Society for Biochemistry and Molecular Biology and also the American Society of Cell Biology, proposing that at their next meetings, they --

MR. ROTHSCHILD: Objection, Your Honor.

THE WITNESS: Sponsor --

THE COURT: Hold on.

MR. ROTHSCHILD: The letter hasn't been produced, and I do think it's hearsay. I mean, if he has it and can, you know, read it into evidence, that's one thing. But, first of all, it's another declarant that he's effectively taking credit here for, Ken Miller, and we don't have a letter to cross-examine.

THE COURT: He says he was a co-author of the letter. He's paraphrasing the letter. He's not reading from it.

MR. MUISE: In fact, it's a greater objection to read from the actual letter than from him to explain.

THE COURT: I think that would be a problem. No, I'll overrule the objection. If he is summarizing or paraphrasing the letter, which he is the co-author of, I'll overrule the objection, and you may proceed.

MR. ROTHSCHILD: I also have an objection. We haven't been produced the letter, which deprives us of the opportunity to cross-examine.

MR. MUISE: Your Honor, I mean, they had an opportunity to request any of the documents that they wanted to request. There's no -- there's been total disclosure in this particular case. There's been a lot of documents that's been gone back and forth.

THE COURT: I bet that letter is readily available, and I'm going to further bet that we're not going to finish with this witness today. Why don't you get the letter -- I'm not -- I've overruled the objection. But I think it's a fair request, that if some of the testimony is predicated on the letter and the summary of the letter, that that be produced. I don't think that's a hardship to ask that the letter be produced.

MR. ROTHSCHILD: Your Honor, this certainly was not part of, in any way part of his expert report or a rebuttal report, to the best of my recollection.

THE COURT: Are you objecting that it's beyond the scope of his expert report?

MR. ROTHSCHILD: Well, I do think it's beyond the scope, but the greater concern is, you know, Mr. Muise is suggesting that, you know, we somehow missed out on our chance to discover this in advance of testimony.

THE COURT: I've cured that. I've asked that he produce the letter, so I'm going to -- let's proceed. Let's move on. Were we in mid answer when we got the objection?

MR. MUISE: He was in the middle, Your Honor.

THE COURT: I think you were in the middle, Professor, of summarizing the contents of the letter, and you can proceed with your answer, wherever you left off, if you would like.

THE WITNESS: We wrote a letter proposing a symposium at the annual meeting of the societies. We sent it off and received an acknowledgment that it had been received, but then no further action from the societies. And furthermore, I think that, the original question --


Q. Regarding the criticism. I believe you answered there were three points you wanted to make, and you've made two. I think this is the third point?

A. The third point is that, one has to understand the structure of meetings to see why they may not be the best place to present such ideas. As I mentioned before, large national scientific meetings have many people, but generally most presentations are made as what are called poster presentations, where you get a large poster board, tape up figures and text on it, and go into a large hall with hundreds of other scientists, and display your poster.

People wander by and look at it, and can either read it by themselves or continue on or they can stop and talk with you a bit. But it is not a place for a sustained conversation, a sustained discussion about topics such as intelligent design which require a lot of preliminary background, explanation, and so on.

Rather, the seminars and discussions that I've just gone through are, in my opinion, much better forums for presenting such material, because generally you can speak continuously for 50 minutes to an hour.

There are generally 20 to hundreds of other scientists, active admissions, and so on, who are listening quite closely to the argument you are making and who can respond with discussion and questions and counter arguments of their own. So I view it as a much better forum than a large national meeting.

Q. Sir, I'd like to refer you back to your CV. It's Defendants' Exhibit 249. I want to review some of the additional articles or writings that you have done relating to the topics of intelligent design and evolution and defending intelligent design against claims such as it's religion and it's not science and so forth.

If you look at your CV under publications, there's one published in 2004, a chapter entitled Irreducible Complexity, Obstacles to Darwinian Evolution. And that was a chapter you wrote for a particular book, correct?

A. Yes, that's right. It appeared in a book called Debating Design, From Darwin to DNA, which was edited by a man named Michael Ruse, who is a philosopher of biology and a strong proponent of Darwinism and a man named William Dutsky, who is a proponent of intelligent design, and it was published by Cambridge University Press.

Q. I believe, if you look at the exhibits that have been provided to you, that chapter is included on the tab 7 as Defendants' Exhibit 203-I under tab 7. If you could verify that for me, please?

A. Yes, that's correct.

Q. Were there opponents of intelligent design that contributed chapters to that book?

A. Yes. It was debating design. That included proponents of intelligent design, of Darwinian evolution, of something called self-organization and complexity theory, a wide range of viewpoints.

Q. Was Dr. Miller one of the people that contributed a chapter of that book?

A. Yes, he also contributed a chapter.

Q. If you go down to the next publication on your curriculum vitae, there's a chapter written in 2003 entitled Design and Details, The Origin of Biomolecular Machines, close quote. And that was published in a particular book?

A. Yes, it was. It was published in a book called Darwinism, Design and Public Education, which was published by Michigan State University Press. I contributed a chapter to that as well.

Q. Were there again competing arguments, arguing intelligent design and teaching it in schools and so forth?

A. Yes, that's right. Again, this was a companion book which had many different viewpoints.

Q. And further down your CV, in 2003, you contributed a chapter entitled The Modern Intelligent Design Hypothesis, Breaking Rules, is that correct?

A. Yes, that's right. Again, this was a collection of essays published by Routledge Press, which also contributed -- contained a contribution by Professor Miller.

Q. And that book was edited by Neil Manson?

A. Yes, he's a philosopher of science.

Q. If you go to the next page in your curriculum vitae, you have an article in Natural History, is that correct?

A. Yes, that's right, entitled The Challenge of Irreducible Complexity.

Q. That was published in 2002?

A. That's correct. This was part of a section in the issue of the magazine which kind of was associated with the discussion and debate that they sponsored, that the American Museum of Natural History sponsored. The American Museum of Natural History is the publisher of Natural History. It contain contributions from myself, William Dembskie, and Robert Pennock and Kenneth Miller, as well as several others.

Q. Going down again in your curriculum vitae, there was a chapter you contributed to a book by another one of Plaintiffs' experts, Robert Pennock, and the chapter was entitled Molecule, Machines, Experimental Support for the Design?

A. Well, it's called Molecular Machines.

Q. Sorry.

A. It was published by MIT Press, yes.

Q. And if you go down further on that page in your -- I'm sorry. Go to the next page of your curriculum vitae. I believe it's page 4. It appears there's an article, Self-organization and Irreducibly Complex Systems, A Reply to Shanks and Joplin. Do you see that?

A. Yes, that's correct. That --

Q. I'm sorry.

A. I'm sorry. That was published in a journal called Philosophy of Science, which is a very prestegious journal in its field. And in it, I respond to objections to the concept of irreducible complexity which were advanced by a man named Neil Shanks, who is a philosopher, and Carl Joplin, who is a biologist, and argued why their objections were incorrect.

Q. If you look again at your exhibit book, I believe under tab 4, it's marked as Defendants' Exhibit 203-G?

A. Yes.

Q. Is that the article you are referring to?

A. Yes, it is.

Q. And then down further on that page, you contributed an article in 1998 to Rhetoric and Public Affairs, is that correct?

A. Yes, that's right, entitled Intelligent Design as an Alternative Explanation for the Existence of Biomolecular Machines.

Q. And I believe one more. If you turn over to page 6, at the top, there's a contribution to the Boston Review in 1997. Do you see that?

A. Yes, I do.

Q. What was that?

A. Well, Boston Review is actually a publication of the Massachusetts Institute of Technology, I believe, their political science department or some such thing. They had a review of my book, Darwin's Black Box, published or written by a man named Alan Orr, who is a professor of evolutionary biology at the University of Rochester.

And after his review, they invited contributions, further discussion by, I think, around a dozen academics, from a dozen academics or so. And the symposium was discussing my book and also a book that was published recently by a man named Richard Dawkins, who is a professor of evolutionary biology at Oxford in England.

And it included contributions from myself, from a man named Russell Doolittle, who is a professor of biochemistry at the University of California, San Diego, a man named James Shapiro, who is at the University of Chicago, and many others.

Q. And I believe you also have contributed three pieces that were actually published in the New York Times, is that correct?

A. Yes, that's right. They called me up and asked me to write about my ideas in, I think, in 1996, 1999, and this year as well.

Q. So the New York Times solicited your ideas on intelligent design?

A. That's correct.

Q. Is it fair to say that in these writings and in these conferences that we've just gone through, that you've been defending your arguments, you've been defending the scientific argument for intelligent design, as well as defending against arguments that it's creationism?

A. Yes, I've done that continuously.

Q. And again, arguing the scientific evidence in support for intelligent design?

A. That's correct.

Q. And were you also arguing with regard to the perhaps lack of scientific evidence for some aspects of Darwin's theory of evolution?

A. Yes, I argued that as well.

MR. MUISE: Your Honor, may it please the Court, I tender Dr. Michael Behe as an expert in biochemistry, evolution, intelligent design, creationism, and science education.

MR. ROTHSCHILD: I'm not sure he was ever actual previously proffered as an expert on science education.

THE COURT: All right. Let's handle biochemistry, evolution, intelligent design, and creationism. Any objection there?

MR. ROTHSCHILD: No, Your Honor.

THE COURT: All right. Do you know if you have any objection with respect to science education?

MR. ROTHSCHILD: I mean, he was not tendered as an expert in science education. I'm not sure what the basis of his expertise is in science education. I mean, I understand he teaches, but --

THE COURT: Do you want to ask him some questions?


THE COURT: I think it's probably an appropriate time for a break.

MR. MUISE: I was kind of timing it to that, Your Honor, looking at that. But if I may say, we have a stipulation that they're qualified to testify as to their opinions that are in their reports, and he certainly is opined about the value of Pandas and of intelligent design to be part of the science curriculum. I mean, it's fairly embraced by that. And we have a stipulation on this, so it's kind of surprising that he's objecting.

THE COURT: Why don't you talk about that during the break and see if it triggers the need for any voir dire on qualifications, specifically on science education, and if it does, we'll hear that. If it's fairly encompassed within the stipulation and it does not, then we'll admit him for that purpose. He's certainly admitted for the other purposes then based on the stipulation and the fact that there's no objection.

We'll reserve judgment on the science education. Although, you know, I will say that, it seems fairly contemplated within his report, but I'm not sure what the essence of your stipulation was, so I recognize that you reserve your right to conduct some voir dire if you see the need to do it, and I'll hear you on that after we return.

So let's break for 20 minutes. We'll return after that period, and we'll see what your pleasure is with respect to the expert qualifications. We'll be in recess.

(Whereupon, a recess was taken at 10:40 a.m. and proceedings reconvened at 11:00 a.m.)


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