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Kitzmiller v. Dover Area School District

Trial transcript: Day 2 (September 27), AM Session, Part 2


THE COURT: Be seated, please. All right, we're back on the record, and Mr. Muise, we are continuing with cross examination.


Q. Thank you, Your Honor. Dr. Miller, the concept of complex specified information, that's a component of intelligent design theory?

A. I suppose it is. I don't normally hear it when intelligent design theory is explained. I didn't see that exact term in "Pandas and People," I may have missed it, perhaps you pointed out to me, but I do know that there is a person who is generally regarded as part of the intelligent design community named William Dembski who has written about complex specified information, and I can't think of anyone else who has written about it other than Dr. Dembski.

Q. When you testified on direct and you referred to the section on "Pandas" with the writing in the sand, John loves Mary?

A. Yes, sir, I did.

Q. Is it your understanding that that's the sort of concept that Dr. Dembski is trying to convey with the notion of complex specified information?

A. Well, you know, I'm not entirely sure, and we could always ask Dr. Dembski, but it's entirely possible that that's what he refers to.

Q. And you said this is a concept argued by Dr. William Dembski, is that correct?

A. That's my understanding.

Q. And he has a Ph.D. in mathematics?

A. That's what I've been told.

Q. And his ideas and concepts were published in a book called "The Design Inference," are you familiar with that?

A. I've heard of the book.

Q. Do you know that the book was published by Cambridge University Press?

A. I have heard that, too.

Q. Is Cambridge University Press an academic press?

A. It is a press that I understand is owned by Cambridge University in England.


A prestigious university would you agree?

A. Oh, absolutely, no question about that.

Q. I may want to forewarn the court reporter I have some phyla questions coming up here. Dr. Miller, the octopus belongs to the phylum mollusca, M-O-L-L-U-S-C-A, is that correct?

A. Yes, sir, I believe that's correct. Is this going to be a little bit of a biology quiz here, sir?

Q. I think you'll be prepared for it.

A. Okay, I'm ready to go.

Q. It's not a pop quiz, put it that way.

A. Okay.

Q. The starfish belongs to the phylum --

A. Echinodermata. I can help you with these.

Q. E-C-H-I-N-O-D-E-R-M-A-T-A?

A. Right, and that is pronounced echinodermata.

Q. And an insect belongs to the phylum anthropoda?

A. No, sir, arthropoda. That's an R.

Q. Sorry. A-R-T-H-R-O-P-O-D-A?

A. That's correct.

Q. And a fish, in the example we used a minnow, belongs to the phylum chordata?

A. Chordata, that is correct.

Q. C-H-O-R-D-A-T-A?

A. That is correct.

Q. It's true that there's no fossil evidence that show that these phyla share a common ancestor?

A. Let me think about that just for a second.

(Brief pause.)

A. Within the last year a number of small bilateran fossils have indeed been discovered in fossil formations in China, and these -- by bilateran, B-I-L-A-T-E-R-A-N, we mean an organism has an axis of symmetry that goes right down the middle just like we do, and has parts of the body on both sides, hands on both sides, these small bilateran fossils exist in a time period preceding the Cambrian, and they may well turn out to be the ancestors of several of the phyla that you mentioned, and these would include arthropoda and chordata. It's a little more difficult to see how they could be the ancestors of echinodermata, which display radial, or five-fold symmetry.

Q. If you could go to your deposition at page 267?

A. Yes, sir.

Q. In the question beginning on line 12, "Is there fossil evidence that shows that each share a common ancestor," and we're referring to those four phyla that I just asked you about, could you please read your answer?

A. Sure, I'd be glad to. The question you asked, is there a fossil evidence that shows these share a common ancestor, the answer is that, "No, we don't have evidence yet of a common ancestor for these four different," I said phylum, but it should be phyla, "we do, however, have molecular evidence from organisms living today, As I mentioned several times, that all these organisms share a common molecular tool kit which is strong evidence on a molecular evidence, and many people would argue that molecular evidence is more important than fossil evidence, that they do share a common ancestor in molecular terms."

Now, I would point out, because I'm sure you're about to ask me about the difference between my statement in the deposition, which was taken in May, and my testimony here today, which is in the month of September, and the difference is I've read the paper on these small fossils. This is a new development in science, and that's why my answer today is somewhat different.

Q. Is the point you make about many people would argue that molecular evidence is more important than fossil evidence, when you say the many people, are you referring to scientists?

A. Yes, sir, I am.

Q. Sir, you testified about the Dover statement in your direct, correct?

A. Yes, that's right. I do believe I did testify about the Dover statement.

Q. And you never spoke to a board member from Dover, is that correct?

A. Let me think hard about this.

Q. Let me rephrase the question. You never spoke to a board member about the statement?

A. I don't believe I have spoken to any members of the Dover board of education about any matter. I was just trying to make sure that was correct.

Q. And you never spoke to any administrator at the Dover area school district about the statement?

A. Sir, I believe that's correct, and I also believe that when I became aware that Dover was a community that was discussing this contentious matter of how to teach evolution --

Q. Sir, did you speak to an administrator from Dover?

A. Well, I'm trying to give you an answer. I can't give you yes or no because I did e-mail a number of people in Dover, and I suspect, these are people whose names I got off of the Dover area school district web site, and I don't want to answer yes or no because, you know, one of those people might have been like an assistant superintendent, I can't remember if it was a principal or a department chair, I did send e-mails to a couple of people.

Q. Were they --

A. Sorry, and I'm not being evasive, it's just the question is not being able to recollect who they were, but I want to make sure that the record and the court does reflect that I did indeed send a couple of e-mails to people in Dover saying I would support them, I would be happy to answer their questions about evolution, and you know, one of them might have been an administrator. So that's why I'm being a little fuzzy on this.

Q. My question was did you speak to any administrator about that statement, the Dover statement that you testified about on direct.

A. Under the qualifications that I've just given you, which is, you know, I might have sent an e-mail to somebody who happened to be an administrator, I believe the answer to that is no to the best of my recollection.

Q. Do you recall if that e-mail discussed this statement in any fashion?

A. I don't believe it did, but I can't, I don't have a copy of it and I can't be positive.

Q. If you turn to your deposition at page 321?

A. Okay.

Q. Starting with the question at line 4, can you read the question and read your answer down through line 12?

A. Well, the question is, it presupposes something before it, it says, "Whereas the theory of evolution is not a fact."

Q. Your answer?

A. No. Sorry, my answer is, "No scientific theory is a fact, and the Dover statement is very clear that it uses the theory of evolution in the second sense, because when the statement says Darwin's theory is a theory, and when you talk about Darwin's theory, you are specifically talking about the descent with modification and natural selection." I think it's very difficult to make sense of that answer without the context of the question that precedes it.

Q. Did you correctly read your answer in the deposition?

A. Yes, sir, I did.

Q. Now, in this statement it says, the Dover statement, "a theory defined as a well tested explanation that unifies a broad range of observations," do you recall this statement has that definition of theory in it?

A. Yes.

Q. And that is a correct and proper definition of theory?

A. Yes, and I believe that in my direct testimony I testified that yes, that was I thought a pretty good definition of the word theory.

Q. And it properly defined the theory of evolution?

A. It properly defines a scientific theory, and because the theory of evolution is a scientific theory, yes, it fits the theory of evolution.

Q. I just want to revisit that question from page 321. Within the context of the preceding question that was addressing the different meanings of evolution that I believe you testified to on direct and that I had asked you on cross whereas evolution can mean change over time or it can also mean evolution as a theory, the processes of how that evolution may have occurred, the first may, is more akin to a historical fact, the second sense is a theory which not a fact, is that the correct context of your answer?

A. The correct context of the area, the first part is perfectly fine, you said a theory which is not a fact, and again theories are a higher order of explanation than fact, and in that sense that was correct, right.

Q. And that's the context for the answer that you gave on page 321 of your deposition?

A. Yes, yes, that is right. The reason I wanted to point that out is because my answer begins the second sense, and of course if I just read that into the court record, one has no idea as to what is meant by the second sense without the preceding question.

Q. And that second sense is the theory sense of the meaning of evolution that we just discussed?

A. That's right, which is a coherent testable scientific explanation as to how the process of change over time has taken place.

Q. If you go to your deposition page 329?

A. Sure.

Q. Again these are more questions I've asked you about that, the Dover statement. If you look at, read the question beginning at line 15, and then your answer that follows?

A. Okay. Question, the next sentence, "The reference book 'Of Pandas and People' is available for students who might be interested in gaining an understanding of what intelligent design actually involves. Do you have any problems with that statement? Answer: No, I think the fact that the board has provided that book, made it available to students, and that they have characterized it as a book on intelligent design, that's all a fair statement. So I think that particular statement is something that effectively communicates the reality of the situation to students, which is why we got this book, it's available for you and this book describes intelligent design."

Q. And just a correction, I believe which is "we got this book," not "which is why we got this book," correct?

A. I'm sorry. If I read it wrong I apologize. "Which is we got this book, it's available for you, and the book describes intelligent design."

Q. Is that a truthful answer?

A. Of course it's a truthful answer.

Q. Sir, would you open up your textbook, Exhibit 214?

A. Sure.

Q. Turn to page 15 for me, please. If you read the paragraph that begins with the words " A useful"?

A. Sure. " A useful theory may become the dominant view among the majority of scientists, but no theory is considered absolute truth. Scientists analyze, review, and critique the strengths and weaknesses of theories. As new evidence is uncovered a theory may be revised or replaced by a more useful explanation. Sometimes scientists resist a new way of looking at nature, but over time new evidence determines which ideas survive and which are replaced. Thus, science is characterized by both continuity and change."

Q. Is that correct with regard to all scientific theories?

A. Yes, I believe it was. This is a chapter on the nature of science, and Joe and I wanted to emphasize to the students to scientific views may change over time in light of evidence.

Q. And that includes the Darwin theory of evolution?

A. Darwin's theory is a scientific theory. All theories are characterized by continuity and change, yes.

MR. MUISE: No further questions, Your Honor.

THE COURT: Thank you, Mr. Muise. Mr. Walczak, do you have any redirect?

MR. WALCZAK: Yes, Your Honor.

(Brief pause.)


Q. Good morning, Dr. Miller?

A. Good morning.

Q. I want to cover six or seven points that were raised by Mr. Muise. First of all, if we could put Exhibit 124 on the screen? Is this the four paragraph statement that I asked you to comment on in your direct exam?

A. Yes, sir, it is.

Q. And as Mr. Muise pointed out, this statement was read in January. What I'd like to do now is put up I believe it's Exhibit 131, which is a statement that was read to the students in May or June that was revised slightly. Are you able to highlight, Matt, the four paragraphs? Let me represent to you, and if I'm in error I please would invite an objection, but I believe the only paragraph that is changed in any way is the third one. If you could please read that to yourself?

(Brief pause.)

A. I have read it, thank you.

Q. Can you identify what the change would be?

A. You're not playing fair. You should have told me to pay attention to the other one and read this one, but I have to tell you I don't see the change right there, I'm sorry.

Q. Let me see if we can put both --

A. I thought Mr. Muise's phylum quiz was going to be tough.

Q. Just wait until you get my grades. So the one on top is the one from May or June.

A. Oh, okay. Now, sir, I see the difference.

Q. And so what is the difference?

A. Well, they left out an apostrophe in the possessive on Darwin's in the June one, and --

THE COURT: We've lapsed into English there.

A. Your Honor, I'm sorry. It's the teacher in me, I can't help it, and I noticed that as far as I can tell the only other thing is that is the phrase "along with other resources," I think that's correct. Am I missing anything else, Mr. Walczak?

Q. That's what I can see as well.

A. Okay. I don't see any other grammatical mistakes either.

Q. Besides "Pandas" do they mention what those specific resources are?

A. No. The only book I see mentioned in "Pandas," the only book I see mentioned is "Pandas," and other resources unnamed.

Q. Does this change in the May or June reading of the statement, does this in any way change the opinion which you gave to the court about whether the statement promotes student understanding of science and evolution? Does this change your opinion in any way?

A. No, sir, it does not. It's still very clear that in contrast to the second paragraph, which is designed to specifically undermine Darwin's theory of evolution, or the theory of evolution in general, the third paragraph has no such undermining language with respect to "Pandas and People," and that's the only book that it specifically mentions. I think the effect is pretty much the same.

Q. There's a term that has been used throughout the testimony thus far, and it is "origin of life," and is that term used in a scientific way? Is there a way that scientists use the term origin of life?

A. Yes, sir. That term is used in a scientific way.

Q. And how is that term defined?

A. Well, I think the definition is reasonably straightforward, and that is origins of life research is research on, research concerning the conditions on this planet before life first appeared about three and a half billion years ago, and it involves research designed to reveal the pre-biological chemical processes that may have given rise first to self copying or self-replicating molecules, and eventually to the first living cells.

Q. And is that how you have used the term whenever it's employed in your book?

A. I believe it is. It's not something, it's not a question I have thought about in detail, but I believe that's exactly how we used it.

Q. And when you have testified using that term, either in response to a question, that is, has been your interpretation of origins of life?

A. Yes, sir, that is absolutely correct, that origins of life refers to in every sense in which I have used it and Joe Levine has used it in our book and I think in my testimony as to the origin of the first self-replicating molecules and the first living cells on this planet.

Q. When you use origin of life, you're not talking about origin of man?

A. No, absolutely not, sir. I think I've been very careful to use origin of species in terms of referring to that, and human origins or human evolutionary descent is quite a distinct topic from origin of life.

Q. Mr. Muise asked you a fair bit about your personal religious views.

A. Yes, I think he did.

Q. And he also asked you about religious and philosophical statements made by other scientists.

A. Yes, he did, and he I think named probably three of them in particular.

Q. Professor Dawkins was one?

A. Correct.

Q. Are statements, are these scientific statements?

A. No, sir. As I believe I answered for Mr. Muise, none of those statements are scientific in any sense.

Q. And do scientists make say religious statements?

A. Of course they do.

Q. And philosophical statements?

A. Yes, sir, they do. They even make statements about baseball, as Steven J. Gould did frequently, and those are not scientific statements.

Q. Just because a scientist said something doesn't make it scientific?

A. Of course not.

Q. And are you obviously have strong religious views you published in "Finding Darwin's God? Are these views published anywhere in your biology textbook?

A. No, sir, of course not.

Q. Are they published in any of your scientific journals?

A. They are not published in any of my scientific papers.

Q. Why not?

A. Because they aren't science. It's very simple.

Q. I want to direct your attention to your testimony in the Sellman case about which Mr. Muise asked you, and I believe that's Defendant's Exhibit 211. And Mr. Muise asked you about your testimony there where you were asked about the modern usage of creationism.

A. Yes, he did.

Q. And as I recall your answer was essentially the definition of what would be called young earth creationism.

A. Yes. In fact, I don't recall Mr. Muise asking me a question. I recall him asking me to read my testimony, and he did not ask me any questions about the nature of that testimony, and he did not ask for any clarifications.

Q. It might appear that your testimony in Sellman is inconsistent with what you may have testified yesterday. Can you reconcile the testimony?

A. Yes. It's very easy to reconcile that testimony, and that is that in Sellman I should have been much more specific than I was when I said what is generally meant by creationism. And in particular the definition I give to creationism is one that in this trial in order to distinguish it from intelligent design I gave to scientific creationism or young earth creationism.

Now, my testimony in Sellman I think could probably be construed if one does not appreciate the sort of general way in which I used the word creationism as to exclude intelligent design as a creationist theory simply because it doesn't make the scientific predictions that young earth creationism does about the geological record and the age of the earth, but in the most general sense it is a form of, it is a form of special creation or special creationism. Again this term was not at issue in the trial in Atlanta, and that's one of the reasons why I did not carefully define that term as I should have in my testimony in Sellman.

Q. But, Dr. Miller, in Sellman you were in fact asked about intelligent design, were you not?

A. My recollection is that I was.

Q. I'd like you to turn to page 139.

A. This is my testimony in Sellman?

Q. Yes. This would be Defendant's Exhibit 211.

A. Sir, I'm going to need a copy of it. Mr. Muise gave me one, but then he took it back.

Q. You don't remember it, sir?

A. I've got 138 down pretty well, but 139 I'm having trouble with.

Q. May I approach the witness?

THE COURT: You may.

A. Thank you.

Q. Now, the questions Mr. Muise asked you about your answer to I believe as you put it in the modern usage of creationism was on page 138 --

A. That's correct, sir.

Q. -- of the transcript? So now on page 139 I'd like you to read for the court line 7 through 11, please, beginning with the question there.

A. Sure. Line 7 begins, "Question: When you were writing your material on evolution, did you add any information on intelligent design?" The answer is, "No, I did not, and the reason once again is because we have been unable to find scientific evidence supporting the idea of intelligent design."

Q. Now, let me ask you to turn to the next page and read from line 4 to line 14 on 141, and I'll note that the first question there is by Judge Cooper in that case.

A. Perhaps it would help if I read that part to make clear. So I'll begin on line 4 as you requested. " THE COURT: Is it religious based?"

Q. I'm sorry, excuse me. And did you know what the court was referring to when it says "it" there?

A. Oh, excuse me, let me go back to the context. The court is, the term "it" is referring to intelligent design.

Q. Thank you.

A. So with reference to the intelligent design, the transcript begins, "COURT: Is it religious based? WITNESS: The advocates, Your Honor, of intelligent design would argue very strongly that their ideas are not religious based. They would say it is a straightforward conclusion of analysis of information theory and what they regard as the deficiencies of evolutionary theory.

"But I think it's also clear that the people who embrace intelligent design in the United States argue very strongly that they have a religious, argue very strongly that if intelligent design is not included, then their own religious beliefs will suffer. So they certainly in my experience many of them have religious motivations for embracing this particular idea.

"COURT: How do you see it? WITNESS: Pardon me sir? COURT: How do you see it? WITNESS: How do I see it? I'm a -- if I had to describe myself philosophically, I'd describe myself as a pragmatist, which if it works it's good enough for me. And with respect to intelligent design, I'm still waiting, and I've been waiting for about ten years for intelligent design theory to provide a single testable scientific explanation that holds up under peer review, under scientific analysis, and it simply hasn't.

"To put that in terms that my family in southern Indiana, mostly a farming family, would understand, this dog don't hunt. And in the case of intelligent design, I think that's a very good way to describe it."

Q. Could you, I'm sorry, read on through line 14?

A. Yes, sir. "Question by Attorney Michael Minnaeli: Maybe part of what His Honor is asking you about is how you see it in terms of a religion. Intelligent design, positing a designer, a creator Answer: Well, by definition any explanation that requires a creator, an intelligent designer, is religious on its, is certainly religious on its face, and therefore the very fact that intelligent design presupposes a creator makes it so."

Q. I want to shift focus here a little bit. In the passage you just read, near the end you testified that you're still waiting for a single testable scientific explanation about intelligent design. Mr. Muise asked you a number of questions about whether irreducible complexity was scientifically testable, and I believe you testified in fact that it was, that tests have been done. Is irreducible complexity subject to scientific testing?

A. As irreducible, if irreducible complexity is carefully framed the way that Dr. Behe did in his book "Darwin's Black Box," it makes a testable prediction, and that testable prediction is that the parts, the individual components of irreducibly complex machines should have no functions on their own, and that is testable, and as I indicated in my testimony yesterday we can actually carry that test out in many of the systems that Dr. Behe cites, and in every case it fails that test.

Now, the test of irreducible complexity as a scientific statement is not a test of intelligent design, and the reason for that is irreducible complexity by itself makes no argument for design. It makes an argument against evolution. And it's that argument, the argument of evolution not working, that we can subject to a scientific test. But that's not proof of design.

That's not even an argument for design. That is simply a scientific statement made against evolution that is testable. As I indicated it fails that test, but even if it passed the test, that wouldn't be an argument for design.

Q. And when you say Dr. Behe and intelligent design have made predictions, would that be the same as hypotheses?

A. Yes. I regard certain of the statements that Dr. Behe has made as hypotheses that make testable predictions. For example, he looked at the blood clotting cascade, drew the inference that all the parts of the cascade had to be present for clotting to occur, and used that as an argument from irreducible complexity that the cascade could not have evolved. "Pandas" makes exactly the same argument, and that argument can be subjected to a test. And that is if we find organisms in nature that are missing parts of that cascade, if that prediction is right, their blood should not clot.

And I brought into court yesterday two examples, documented examples by science and peer reviewed journals that showed that that prediction was wrong. The blood of whales and dolphins clots, and the blood of the puffer fish clots, and had that prediction been right, neither organism should have been able to clot its blood.

Q. So one of the hypotheses that's been advanced to support irreducible complexity both in "Pandas" and by Dr. Behe has been refuted? Is that the appropriate scientific term?

A. I think refuted, falsified, showed to be incorrect, found out to be wrong are all appropriate scientific terms in this case.

Q. And would you say the same thing about the prediction that the bacterial flagellum is irreducibly complex?

A. Yes, sir, I would. And the reason for that once again is the prediction is that all of the parts are necessary for function. In the absence of any of the parts there is no function that can be favored by natural selection. Once we discover that ten of those parts in a different context have a selectable function, in other words they work, they do something else that's useful to the cell, the hypothesis is tested and found to be wanting. It's falsified.

Q. And the immune system was another hypotheses used by intelligent design proponents?

A. That's correct, sir.

Q. I believe you pointed to ten or eleven peer reviewed scientific papers and studies that have refuted that hypothesis?

A. In the interests in the case of the immune system Dr. Behe made a different prediction. Because the immune system has so many different parts and so many different cells and so many interacting systems that he could not point to a single biochemical cascade like the blood clotting, or a single structure like the flagellum, but instead he pointed to the complexity of the system that shuffles genetic information, makes it possible for us to make antibodies against just about any foreign invader, and he said that system, because it required multiple parts, could never be explained in evolutionary terms. I think he said something to the effect that Darwinian explanations are doomed to failure, and it turns out that ten years of research have proven that Darwinian explanations of that system have been abundantly successful. So in that case that prediction, too, has not borne out.

Q. So the hypotheses advanced by the proponents of your irreducible complexity have been invalidated?

A. They've been invalidated in every case that they've been examined.

Q. Now, but I'm trying to distinguish irreducible complexity from intelligent design.

A. Correct.

Q. Let's assume that in fact there was support for irreducible complexity. Let's say that all of the scientific studies and literature had come out differently and you had not found an evolutionary pathway. Is that support for intelligent design?

A. No, sir, it is not.

Q. Why not?

A. It's not support for intelligent design because intelligent design presupposes a mechanism that exists outside of nature, can't be tested, can't be subjected to natural examination. If irreducible complexity held up, if we couldn't find subsets that were useful, it might mean that these systems had to be assembled by a pathway that was different from the Darwinian pathway, from the evolutionary pathway, and we might then look for another pathway or other evidence in favor of that.

Intelligent design would be a possibility, but intelligent design is always a possibility for everything. It's entirely possible that this universe was intelligently designed ten seconds ago, and each of us was put here with false memories and false childhoods. That's not a testable hypothesis. Is it possible? Yeah, sure. The problem with intelligent design as a scientific explanation is that it can be used to explain in non-scientific terms literally anything, and that's why it is not science.

Q. If you could recap, what are, you talked at the very beginning of your testimony you talked about the ground rules of science, what are those ground rules?

A. Well, I have to think very hard, because if I don't replicate my testimony exactly I'm sure Mr. Muise will have something to say about it, but I think the ground rules of science in the most general sense are that science is limited to the natural world. We do science based on what we can see, what we can observe, what we can test. Experiments we can carry out, control, and watch.

We then look at the results of those experiments, we try to make inferences based on them, and we try to formulate testable hypotheses on the basis of that evidence. Then go out in the world and carry out those tests. The explanations that we put forward as testable hypothesis qualifies as science only if they are natural explanations, because if they are not natural explanations they can't be tested, and that would render them outside of science.

And then finally the other ground rules that I'm sure I mentioned in one context or another is that science and scientific methods have to be open, they have to be made freely available for the criticism of other scientists. We often call that peer review in the formal sense, and they have to be repeatable in the sense that other scientists can carry out the same experiments, the same investigations, make similar observations, and either confirm or deny the results that we have gotten.

Q. So taking those ground rules of science and applying them to the inference for design, not the irreducible complexity.

A. Yes, sir.

Q. The inference for design, does that inference lead to rules of science?

A. No, sir, not by any sense.

Q. And why not?

A. It does not meet it because the idea of design is that forces acting outside of a natural world that we cannot see, cannot replicate, cannot control, and cannot test have produced changes inside the natural world. Now, they may well have. You remember my tongue in cheek explanation of the success of the Red Sox. They may well have, but that explanation is not testable by science, and therefore it cannot qualify as part of the scientific process or as the scientific theory hypothesis or idea.

Q. Does that make it wrong?

A. No, sir, it does not make it wrong. Explanations based on the supernatural could always be corrected, but since they lie outside the mechanisms of science to investigate, they are simply not part of science.

Q. Are there any peer reviewed publications, or scientific papers as you put it, on your curriculum vitae to support this inference for design?

A. I have not found a single peer reviewed paper anywhere in the scientific literature that supports the idea of intelligent design.

Q. I want to cover one more area that Mr. Muise raised. Unanswered questions, there are unanswered questions in evolution.

A. I certainly hope so. Or evolutionary researchers are out of business as of today.

Q. You testified in fact there are unanswered questions in every scientific theory?

A. Yes, sir, there are.

Q. Do we know everything there is to know in other areas of study, let's say history?

A. Certainly not. My daughter, my younger daughter is a history teacher, majored in history, specialized in studying the American Revolution. There are unanswered questions in the history of our own republic. So the answer is yes.

Q. Do we know everything there is to know about the battle of Gettysburg?

A. Well, we know who won. At least we're pretty sure who won. And we know where it took place, we know when it took place. We know the generals on both sides. We know some of the troop deployments. But if you were for example to say let's take a particular soldier from a Rhode Island regiment who wrote home to his family on day two of the battle of Gettysburg, we might know something about that, but you know, we might not know where he was or what he was on day one or where he was or what he did on day three.

Now, I dare to say that there are thousands of examples in which we do not know exactly what happened in a particular place on that battlefield at a particular time. Another way of putting it is that there are gaps in the historical record. But those gaps, they're worth filling, they're interesting, because we'd like to know what every soldier did on both sides in this pivotal battle in American history. So those gaps are unacceptable, and historians try to fill them.

If you discovered the unknown diary of a soldier who had been at Gettysburg, that would be great stuff. Give it to a historian, they'd write papers about it, they'd thank you. But none of this changes the conclusions that we can make from the abundant historical record that already exists as to where, when, and how the battle took place, or what the ultimate outcome was. So we can make accurate and even profound historical conclusions without having a complete historical record.

Q. You're talking about history here. Does that analogy apply to science?

A. Of course it does, because natural history is part of scientific investigation. Much of geology is historical in the sense that it tries to understand the processes that made up our earth. Much of cosmology and astronomy is historical in the sense that it tries to understand what has put together our universe, our solar system, and other things out there in the universe, and a great deal of biology is historical in that paleontology and even through molecular genetics we try to reconstruct what happened in the past.

Q. And does the fact that we don't know all the details undermine the soundness of evolutionary theory?

A. No, sir, it certainly does not.

MR. WALCZAK: May I have just one moment, Your Honor?

THE COURT: You may.

MR. WALCZAK: I have no further questions.

THE COURT: We'll give Mr. Muise the last shot. Any recross?

MR. MUISE: No further questions.

THE COURT: You may step down.

MR. MUISE: I have forgot the exhibits.

THE COURT: Do you have an agreement as to the exhibits, the numbers? I can read you the roster of what I have, and you can work along with me as we do this. I have P-11, pages 7, 37, 65, 99, 100, 139, 140, 145, 146, and 150. Does that pick up everything in P-11?

MR. WALCZAK: I believe it does, Your Honor, but we would move the entire book into evidence.

THE COURT: Any objection?

MR. GILLEN: Not at all, Your Honor.

THE COURT: P-11 is admitted in its entirety. Then we have the following additional exhibits. P-31, P-124, P-127, P-192, P-198, 214, P-214 that is, and P-245. Any objection to those?

MR. GILLEN: No objections, Your Honor.

THE COURT: All right. They're admitted. P-434, I'm not sure what that is. What is 434?

MR. WALCZAK: I'm sorry, Your Honor? 434?

THE COURT: 434 I think is "Darwin's Black Box," I'm not sure.


THE COURT: There are certain pages referred to in that, 39,130, and 139. Is your pleasure to admit the book or the pages?

MR. WALCZAK: We'd move to admit the book.

THE COURT: All right. Any objection?

MR. GILLEN: We have no objection, Your Honor.

THE COURT: All right, that's admitted in its entirety. P-643, again I'm not sure what P-643 is. That is --

COURTROOM DEPUTY: Excerpt of Nature Magazine, September of 2001.

THE COURT: That is page 69 from Nature Magazine. I'm assuming you probably want to admit the page only, but tell me if I'm incorrect.

MR. WALCZAK: We actually like to admit the article that starts on page 69.

THE COURT: Any objection?

MR. GILLEN: No objection.

THE COURT: All right. The entire article is admitted, that is P-643 in its entirely. 649 was --

COURTROOM DEPUTY: A magazine article in the National Academy of Science.

THE COURT: There were three pages referred to. 27, 5, and 16.

MR. WALCZAK: We propose to admit that entire publication.

MR. GILLEN: No objection, Your Honor.

THE COURT: All right. 649 is admitted, P-649 in its entirety. We also have P-654 and P-665. Any objection to either of those?

MR. GILLEN: No, Your Honor.

THE COURT: All right. They're admitted. Any other plaintiff's exhibits that we have missed, Mr. Walczak?

MR. WALCZAK: Some others, Your Honor.

THE COURT: Because of the abundance of exhibits, should you miss something, and this will, I'll afford the same courtesy obviously to the defense, we'll double back. We're going to do the best we can to get them in, but if you discover for example over the lunch break that we forgot something, we'll take it up. That's all I have.

MR. WALCZAK: Your Honor, 192 is the publication from the National Academy of Sciences.

THE COURT: I recited that, and that's admitted.

MR. WALCZAK: That entire exhibit?


MR. WALCZAK: Your Honor, we would also offer for the aid of the court the demonstrative exhibits that Dr. Miller relied on, and it's not necessarily to come in as evidence, but as Your Honor is reviewing the transcript they might be of assistance to the court.

THE COURT: In particular?

MR. WALCZAK: There were the five demonstrative exhibits with the slides I believe that's on the chimpanzee genome, hemoglobin, the bacterial flagellum, blood clotting cascade, the immune system.

THE COURT: In what form do you want to put those into the record? Do you have them printed?

MR. WALCZAK: Yes, Your Honor, I do believe there are prints of the slides that are already in the exhibit binder.

THE COURT: I was looking at them on the screen, so I didn't look at the binders. They're shaking their heads no, there may not be. If you want to supplement the record inasmuch as they were referred to and see if we can have an agreement, that's one where I'll allow you to double back if you want to, to put them in.

MR. WALCZAK: Your Honor, Mr. Gillen and I have quickly reached agreement that we would agree to produce these slides of both of our respective demonstratives.

THE COURT: The nods of the heads would indicate a meeting of the minds. So however you get them in, and why don't you mark them appropriately and we'll get them in at that time, and that would go for any demonstrative exhibits. Now, on cross examination by Mr. Muise, I have D-233, D-214, D-210, and D-211. Mr. Muise, your pleasure on that. Do you want to wait, or do you want to move to admit them now?

MR. MUISE: We had 214, Your Honor, the biology book, would you mind if we have that admitted at this time?

THE COURT: I couldn't hear you. Say again?

MR. MUISE: The biology book, 214?

THE COURT: You want to admit that?

MR. MUISE: We want to admit that, Your Honor. Exhibit 210.

THE COURT: I have 210.

MR. MUISE: We'd also admit --

MR. WALCZAK: I'm sorry, Your Honor.

THE COURT: 210 is the article. So you want to move 214 and 210. Any objection, Mr. Walczak?

MR. WALCZAK: No, Your Honor.

THE COURT: All right. They are admitted. How about 233 and 211?

MR. MUISE: We'll move for the admission of 233, Your Honor.

THE COURT: Mr. Walczak?

MR. WALCZAK: What is that?

MR. MUISE: The Pennsylvania academic standards.

MR. WALCZAK: No objection to those.

THE COURT: 233 is admitted. And finally 211?

MR. MUISE: We're not going to move for the admission of 211, Your Honor.

THE COURT: So D-233, D-214 and D-210 are admitted. Plaintiffs will be granted leave to submit the demonstrative exhibits in some form, and you can mark those appropriately and we'll take those out of turn at that point. That would seem to cover all the exhibits for that witness. And you may call your next witness. We'll go until about 12:15 I think. So there's certainly time to start the next witness.

MR. HARVEY: Your Honor, the plaintiffs call to the stand plaintiff Tammy Kitzmiller.

(Tammy Kitzmiller was called to testify and was sworn by the courtroom deputy.)

COURTROOM DEPUTY: Please be seated and state your full name for the record.

THE WITNESS: Tammy Kitzmiller.


Q. Please restate your name.

A. Tammy Kitzmiller.

Q. You're a plaintiff in this action?

A. Yes, I am.

Q. Ms. Kitzmiller, please tell us where you live.

A. 2045 Andover Drive in Dover.

Q. And how long have you lived at that address?

A. With the exception of the time period between December 2001 and August 2003 I've lived in the Dover school district since 1993.

Q. Do you have children?

A. Yes, I do.

Q. How many children do you have?

A. I have two daughters.

Q. Please tell us their names, just their first names, and their ages.

A. Megan is 17, and Jessica is 15.

Q. Do they attend school?

A. Yes, they do.

Q. Please tell us what school they attend and the grades.

A. They're high school. Megan is a senior, and Jessica is a sophomore.

Q. So that means that Jessica is in 10th grade right now?

A. Yes.

Q. In Dover High School, correct?

A. Correct.

Q. And did Jessica take the biology class when she was in 9th grade?

A. Yes, she did.

Q. Was that in the 2004-2005 school year?

A. Correct.

Q. How long have your daughters been attending public school in Dover?

A. Since kindergarten.

Q. Please just tell us where you went to high school.

A. Bermudian Springs.

Q. Did you have any formal education past high school?

A. No.

Q. And please tell us what you do for a living?

A. I'm an officer manager for a landscape company.

Q. Ms. Kitzmiller, did there come a time when you learned that the Dover area school district board of directors was considering approval of a biology textbook?

A. Yes. That would have been the summer of 2004.

Q. Do you remember the month, what month it was?

A. I believe it was June.

Q. And can you tell us what -- first of all tell us how you learned about it.

A. Through the newspapers.

Q. Do you specifically remember which newspapers?

A. It would either have been the York Dispatch or the York Daily Record.

Q. Tell us what you learned.

A. There was a question which biology book the school would approve. I also learned that certain board members had a problem with the biology book. There were statements made that it was laced with Darwinism. They also wanted to balance the biology curriculum with creationism.

Q. And then did you subsequently learn anything more about the approval of a biology textbook?

A. Yes. From what I can recall I remember the books being approved with the exception that they also wanted a supplemental book, "Of Pandas and People," in the classroom.

MR. GILLEN: Your Honor, just for clarification, I want to make sure that we have preserved our standing objection to the hearsay in the newspaper articles. There's testimony about that based on our motions in limine.

THE COURT: We'll note the objection and the standing objection as it relates to the newspaper article. It may be in a different context with respect to this witness, so feel free if you want to restate it in a different context, but I'll certainly grant that standing objection per your motion in limine.

MR. GILLEN: Thank you, Your Honor.


Q. Ms. Kitzmiller, did there come a time when you learned that the board of directors of Dover area school district had changed the biology curriculum?

A. Yes.

Q. And when did you learn that?

A. When the resolution was passed in October of 2004.

Q. And what did you learn?

A. I learned that they would be reading a statement to the biology class.

THE COURT: Let me stop you for a second. I think we're going to have trouble hearing you, and I know that's hard, you probably haven't testified before and you don't want to talk any louder. Why don't you move the microphone just a little bit closer? I'm guessing the people can't here. Try that. You don't have to get right on top of the microphone, that should be all right. You may proceed.

MR. HARVEY: Your Honor, may I approach the witness with an exhibit?

THE COURT: You may.


Q. Matt, if you can, please, put it up on the screen. That's P-127. Ms. Kitzmiller, I've handed you what's been marked as P-127. Have you had a chance to look at it?

A. Yes. I have seen this at home.

Q. Can you tell me what it is?

A. Yes. It is a biology curriculum update which was a newsletter that was mailed to residents in the Dover district.

Q. Do you know where it was mailed from or who mailed it?

A. From the school district.

Q. And did you receive it in the mail?

A. Yes, I did.

Q. And can you tell us, your daughter was in the biology class in January of -- excuse me, 2004, when this segment on evolution was introduced, correct?

A. 2005.

Q. Thank you very much. And can you tell us your understanding of how the change to the biology curriculum was implemented in the classroom?

A. Yes. The statement that's referenced at the bottom of the curriculum update, an administrator or walked into the classroom -- well, I'm guessing that if there were students that objected or parents that opted their children out, they left the room, and then an administrator walked in and read the statement, leaving no room for questions, answers, and then they left.

Q. How do you know what happened?

A. My daughter was in the class. She opted out.

Q. And do you know why she opted out?

A. She didn't want to be singled -- well, she didn't feel she should be singled out, but she also did not feel she needed to be in the classroom if her teacher didn't have to be there.

Q. Now, I'd like to know if you can tell us whether you feel that you've been harmed by the actions of the Dover area school district board of directors.

A. Absolutely. I feel that they have brought a religious idea into the classroom, and I object to that. I do not think that this is good science. There seems to be no controversy within the scientific community, and I would think the biggest thing for me as a parent, my 14-year-old daughter had to make the choice whether to stay in the classroom and listen to the statement, be confused, not be able to ask any questions, hear any answer, or she had to be singled out, go out of the classroom and face the possible ridicule of her friends and classmates.

MR. ROTHSCHILD: We have no further questions.

THE COURT: Cross examination, Mr. Thompson?


Q. Mrs. Kitzmiller, I'm Richard Thompson. I'm representing the defendants in this case. How many school board meetings did you attend in the year 2004?

A. Off the top of my head, I attended in November and December, that probably would have been four.

Q. When is the first time you attended a school board meeting in 2004?

A. It would have been in November.

Q. In November?

A. Yes.

Q. That was after the policy itself was voted on by the school board, is that correct?

A. Correct.

Q. And so you really were not involved or did not hear of the debate that was going on in the school board on that particular policy, personally hear that debate, is that correct?

A. I had no personal knowledge, no.

Q. You had no personal knowledge of it?

A. No.

Q. Now, also most of the information that you just gave your counsel was based upon your reading of accounts in the newspapers, is that correct?

A. That's correct.

Q. And so you don't know whether those accounts were accurate or not as they reflected the debate of the school board when they were determining whether to implement the policy or not, is that correct?

A. I would have to say that's correct.

Q. Okay. Now, you were referred to a newsletter that you got in February 2005, is that correct?

A. Correct.

Q. And did you object to the parents being informed of what the school board was going to do? Not the exact substance, but being informed what the school board was going to do, were you pleased at least to be notified of what they intending to do?

A. That's a tough question. Obviously the school district has a right to release the information as to what they're going to do. The manner in which it was done I would have questions with.

Q. You mentioned about your daughter having to opt out of that particular science class when they read this one minute statement, is that correct?

A. Correct.

Q. Now, there are opportunities that the school board gives parents to have their children opt out on many different kinds of subject matter, is that correct?

A. That's correct.

Q. They have a very lenient opt out policy, is that correct?

A. I would assume, yes.

Q. Yes. Okay. Now, one of the -- or the only book that the school board mentioned by name was "Of Pandas and People," is that correct?

A. That's correct.

Q. Do you know whether your daughter has ever read any part of "Pandas and People"?

A. I have no knowledge that she has.

MR. THOMPSON: Okay. No further questions.

THE COURT: Mr. Harvey, any redirect?

MR. HARVEY: No redirect, Your Honor.

THE COURT: You may step down. Thank you. Do you want to take another witness?

MR. HARVEY: Absolutely, Your Honor. Plaintiffs call to the stand Aralene B. Callahan.

(Aralene Callahan was called to testify and was sworn by the courtroom deputy.)

COURTROOM DEPUTY: Please state and spell your full name.

THE WITNESS: My name is Aralene Joan. Callahan. My nickname is Barrie. A-R-A-L-E-N-E, C-A-L-L-A-H-A-N. Barrie is B-A-R-R-I-E.

MR. HARVEY: Your Honor, I have a notebook of exhibits, all of them that are just a complication of some of the exhibits in the binder. I'd like to give it to the witness.

THE COURT: You may, sure.


Q. Mrs. Callahan, please tell us where you live.

A. 2030 Skytop Trail. Dover, Pennsylvania 17315.

Q. How long have you lived there?

A. About thirty years.

Q. Are you married?

A. Yes.

Q. Tell us your husband's name, please.

A. Frederick Brian Callahan.

Q. Do you have children?

A. Yes.

Q. How many children do you have?

A. Three.

Q. Please tell us their names and their ages.

A. Arie is 23, Danny's almost 21, and Katie is almost 17.

Q. Do any of them attend school in the Dover area school district?

A. Yes.

Q. Which child?

A. Katie.

Q. And what school does she attend?

A. Dover area high school.

Q. What grade is she in?

A. 11th.

Q. Please tell us what high school you went to.

A. Lower Marion High School.

Q. Do you have any formal education beyond high school?

A. Yes.

Q. Please tell us what formal education you have.

A. I have a B.S. from Ursinus College.

Q. What do you have a B.S. in?

A. Psychology.

Q. And did you at any time serve on the Dover area school district board of directors?

A. Yes.

Q. Please tell us what years approximately to the best of your recollection you served on the board of directors.

A. I think it started in `93. I know it ended in 2003.

Q. Do you know what month of 2003?

A. November of 2003 would have been my last meeting.

Q. During the time that you were on the Dover area school district board of directors did the board have retreats?

A. Yes.

Q. What's the first board retreat that you can remember?

A. The first board retreat using the word retreat was in January of 2002.

Q. And can you remember specifically what happened at that retreat?

A. Specifically at that retreat I don't know.

Q. What's the next board retreat that you recall after the retreat in January of 2002?

A. That would have been March of 2003.

Q. Do you know Allen Bonsell?

A. Yes.

Q. Who is Allen Bonsell?

A. Allen Bonsell at that time was a school board member also.

Q. And did Mr. Bonsell have at that point in March of 2003, did Mr. Bonsell have any positions with respect to committees on the board?

A. He I believe the entire time that I served on the board with him he was chairman of the curriculum committee. He may have had other committee positions, but I can't recall.

Q. Now, do you remember a part of this retreat in March of 2003 where the board members went around the room and expressed issues that were of concern to them?

A. Yes.

Q. And tell us what you remember just generally about how that process worked.

A. Each board member had some time to talk about issues that were of concern to them at that time.

Q. Do you remember what Allen Bonsell identified for as issues of concern to him at that time?

A. Yes, I do. He expressed that he did not believe in evolution, and he also said that if evolution was part of a biology curriculum, creationism had to be shared 50/50.

Q. Did you take notes during that board meeting?

A. Yes.

Q. What did you write down generally during that board meeting?

A. Just different notes that people had said. I wrote down a couple of things that were concerns of mine also.

Q. When did you take these notes?

A. As I was attending the meeting.

Q. And as the people were speaking?

A. Yes.

Q. Now, I'd like you to take a look at what's been marked as P-641. It's in the notebook in front of you. Do you recognize P-641?

A. Yes.

Q. Tell us what it is.

A. It's the agenda from the board administration -- excuse me, board administrative retreat from March 26th, 2003.

Q. And do you know where this document came from?

A. It came from my home.

Q. And how was it that, tell us how it came to be in your home.

A. Well, it was in a pile of board information that I still had.

Q. And is there anything written on this document about what Allen Bonsell said at that meeting in March of 2003?

A. It has, "Allen - American history, founding fathers." Then "50/50 evolution versus creationism," and then an arrow from evolution, "Does not believe in evolution."

Q. Now, do you remember anything else that Mr. Bonsell said at that meeting?

A. No.

Q. I'd like you to look at the second page of what's been marked as P-641. Do you see that?

A. Yes.

Q. And what's that?

A. These were the school board members' issues from the previous year.

Q. And was it part of the first page of P-641?

A. It was on the back of that document.

Q. And do you know who created this?

A. I believe Dr. Nielsen created it.

Q. Do you know how he created it?

A. I believe what he did as school board members were talking about their issues, he jotted them down and then kept them and distributed them.

Q. And there's a note on there under the name Allen Bonsell?

A. Yes.

Q. Do you see that?

A. Yes.

Q. Can you please read what it says under number 1 and 2 under Allen Bonsell?

A. Creationism number 1. Number 2, prayer.

Q. And do you remember him saying that?

A. Not at that time, but I do remember him talking about creationism. I remember him talking about creationism, because that spurred me to go to the high school to go talk to administrators about it.

Q. And tell me the circumstances under which you went to the high school and talked to administrators about that.

A. It was after I heard Allen Bonsell speak about creationism I talked to Bob Hamilton, who at that time was the principal of the high school, and Larry Reading, who was the assistant principal at the high school, and I was expressing my amazement that a school board member would want creationism as part of a biology curriculum.

Q. And if you'd just please turn to the first page of 641 again, those notes that you read?

A. Yes.

Q. Whose handwriting is that?

A. That's mine. I'm not proud of that.

Q. Now, we're going to move off that exhibit for just a minute now, and I'd like to ask you about a different subject. Did the board approve funds for a biology textbook in 2003?

A. Yes.

Q. Were you on the board at the time?

A. Yes.

Q. Did this approval for funding cover any other textbooks?

A. Yes.

Q. What textbooks did it cover?

A. It covered all the textbooks that were going to be bought that were part of the science curriculum, and also family and consumer sciences.

Q. Was there any schedule for buying textbooks?

A. The now superintendent Richard Nielson, who had been when he was the assistant superintendent had established a 7-year curriculum cycle, which was very beneficial in terms of budgeting I thought.

Q. What month of 2003 was it that the funding for the science textbooks was approved?

A. June.

Q. Now, after that approval for the funding of the science textbooks did the board approve the purchase of a biology textbook?

A. No.

Q. Did you raise the issue at any time when you were on the board?

A. Yes.

Q. How did you raise it?

A. I repeatedly asked what the status was of purchasing the biology book, and not only the biology book. There were some chemistry books that hadn't been ordered, and there were also some family and consumer science books that hadn't been ordered, and I know at one point, and I believe it was August of that year, I even made this motion myself to approve those books since they had already been approved in the budget, but they died, that motion died for lack of a second.

Q. And did anybody on the board tell you why the approval of the purchase of the textbook was not passing?

A. No.

Q. Did this affect your daughter?

A. Yes.

Q. What grade was your daughter in at the point?

A. My daughter was in 9th grade September of 2003.

Q. How did this affect your daughter?

A. She didn't have a biology book to take home. There were biology books on the shelf, but they were merely used as reference. It was my understanding that they weren't matching the curriculum, and the teachers were hoping to get their new biology books that they had reviewed and had been approved in the budget.

Q. Now, your time on the board I believe you testified was over in November of 2003?

A. Yes.

Q. Did you raise the issue of the approval of a purchase of a biology textbook after your term on the board expired?

A. Yes.

Q. And how did you raise it?

A. I would approach the school board at a public session during public comments and ask the status of the biology books.

Q. How many times did you raise that concern?

A. I think altogether when I was on the board and off the board it may have been five or six times.

Q. And what happened when you raised it with the board in those cases?

A. I would pretty much get a non-answer.

Q. Did you attend a meeting of the Dover area school district board of directors on June the 7th, 2004?

A. Yes, I did.

Q. Why did you go to that meeting?

A. It was still, the major area of concern was these books hadn't been approved. I mean, my daughter had already gone through biology and didn't have a biology book. Well, the chemistry books hadn't been approved yet, and she was going to be taking chemistry. I was really going to be upset if she was going to be in a class that didn't have a chemistry book to take home.

Q. Now, I'd like you to take a look at what's been marked as P-42 in your notebook. Matt, can you please put it on the screen? Take a look at P-42 and tell us what it is.

A. This is the school board planning agenda meeting from June 7th, 2004.

Q. I'd like to focus on the language that I'm going to have highlights in bold from P-42. Do you see those words "planning meeting"?

A. Yes.

Q. What does that mean?

A. That means that it's scheduled as a planning meeting, and what the practice of the school board had been, the first meeting of the month typically was a planning session. I mean, there might be an action item, but that would be if there's for instance like an emergency appointment, typically that was the planning meeting. Then the second meeting of the month was the action meeting.

Q. I just got a glass of water and you're actually doing more talking than me. Would you like a glass of water?

A. Please. Thank you.

Q. Now, did you see this agenda at or around June 7th, 2004? We're on P-42, ma'am.

A. Yes. Just to make sure, yes.

Q. Can you tell us if this agenda shows that the board was scheduled to consider approval of any textbooks?

A. Yes.

Q. Which textbooks was it scheduled to consider approval of?

A. Chemistry, and family and consumer science.

Q. What about approval for biology? Was that --

A. No.

Q. Did you speak at that meeting?

A. Yes.

Q. Tell us what you said at that meeting.

A. As far as I can remember, when I'm looking at the agenda and I see that well, there were science books, chemistry and family and consumer sciences ready to be approved, but there was no biology books. So I felt that I just had to approach the board one more time and ask them why the biology books were not scheduled for approval.

Q. And is that what you said?

A. Yes.

Q. And do you recall what the board said back to you?

A. I do recall that Bill Buckingham said to me, "Well, the biology book is laced with Darwinism."

Q. Who is Bill Buckingham?

A. Bill Buckingham was a school board member at the time.

Q. Did he have responsibility for any particular committee on the board at that time?

A. At the time he would have been chair of the curriculum committee.

Q. What did you do after Mr. Buckingham made that comment about laced with Darwinism to you?

A. I said, "So this is about evolution."

Q. Did you say anything else?

A. No.

Q. And did he say anything else?

A. At that time I don't recall that he said anything else.

Q. Tell us what happened next.

A. I sat down, and there might have been some kind of conversation going on, because I sat down, and as I was sitting down a student who had graduated with my son was sitting at that same table, and he was alarmed by what had just happened, and he said to me, "Mrs. Callahan, would it be okay if I got up to address the school board?" And I said, "I would think so. It's still public comment and, you know, go ahead." And he did then approach the school board.

Q. And what did he say?

A. He started questioning them, he explained actually that he was a biology major at Penn State, and he started to explain to them how important evolution is to a biology curriculum. And as he was explaining things to them, several of the board members were talking back to him. So it was an exchange.

Q. What did they say back to him?

A. They said that, "Well, okay, fine, evolution, but we need to teach creationism." They were pretty much down playing evolution as something that's credible. Bill Buckingham talked about creationism. Allen Bonsell talked about creationism. And as it went back and forth, at one point I thought Max was doing a really good job. He was staying calm and he was just repeatedly trying to explain to them what the meaning of biology was, what the meaning of evolution was, and he was getting this bantering back and forth. So at one point Bill Buckingham seemed to be getting pretty frustrated, and he said, "Well, you're a perfect example of what happens to students when they go to college. They get brainwashed."

Q. Do you remember anything else that was said in that exchange between the board and this student?

A. I also remember Noah Renwick explaining what a scientific theory was, and he explained that a scientific theory becomes a theory by repetition. In other words, if you just keep repeating it and repeating it and repeating it, whatever it is, that's how science becomes a theory.

Q. I'm not sure if I asked you, can you tell us the name of this student?

A. Oh, Max Pell.

Q. When you say he was a student, he was a college student?

A. He was a college student, yes.

Q. What was his demeanor during this exchange?

A. He stayed calm. I was really impressed how he was handling himself. I mean, he was a young man and these were adults kind of theatering him. They were rude at times I thought.

Q. Now, do you recall Mr. Buckingham showing Mr. Pell a picture at any time during that exchange?

A. Yes.

Q. Tell us what you remember.

A. I remember Mr. Buckingham stood up and went over to Allen Bonsell and showed him what appeared to be a picture and whispered something, there was a little exchange between the two of them, and then sat back down and started talking about this picture to Max.

Q. And what did he say?

A. He said something to the effect of, "you Can't expect me to believe that I was ever descended from apes and monkeys."

Q. Do you recall anything else that happened at that board meeting?

A. No.

Q. Do you read a local paper?

A. Yes.

Q. Which paper?

A. We receive the York Dispatch at our home, and any time there's a Dover issue I make sure I get the Daily Record.

Q. Were you in the practice of reading the news, the local papers at that time?

A. Yes.

Q. Now, I'd like to show you what's been marked as P-44. Do you have that in front of you?

A. Yes.

Q. Can you tell us what it is?

A. It's from the York Dispatch, June 8th. It's an article.

Q. Who's the author?

A. The author is Heidi Bubb.

Q. Have you read that before now?

A. Yes.

Q. When did you read it?

A. I know I read it within the last couple of days.

Q. Did you read it at or around that time?

A. Yes.

Q. Now, I'd like you to look at that and tell us if that helps you remember anything else that happened at the meeting.

A. Well, yes. I mean, then it became apparent that they were still going to be looking at a book that teachers and board members could approve, but it gave me a sense that they were still going to continue looking for a book that had creationism in it.

Q. Does it help you remember anything else that happened at the meeting on June 7th of 2004?

A. Yes, because when Max started talking about the issue that he was concerned that religion was going to be in the biology class, Bill Buckingham made it perfectly clear that he thought the idea of separation of church and state to be mythical.

Q. Do you remember anything, does looking at this Exhibit P-44 help you remember anything else that was said at that meeting?

MR. GILLEN: Excuse me, Your Honor. Just to the extent that the witness is testifying from memory, memory is one thing, but reading from the article is another. I'd request that she not read from the article as evidence of --

THE COURT: I think the objection is well founded. What you're being asked to do is look at the article and to see whether or not it refreshes your recollection as to what happened at the meeting, and you can do that. But you shouldn't refer to the article in your answer. That's inappropriate for you to do that. So if you want to take a moment and read the article, we'll give you the opportunity to do that. Or if you want to take a moment as you get asked the question you can read the article, but you must answer from your own memory. Don't recite something that you're reading from the article.

THE WITNESS: All right.

THE COURT: It's your memory that controls. If it's refreshed it is. If it's not, fair enough.

THE WITNESS: Thank you. But I do remember when Max was showing his concern about religion as part of the biology curriculum that Bill Buckingham, you know, in an exasperated tone did say, "You know, hey, the separation of church and state is just a myth."

MR. HARVEY: Do you remember anything else about that?

MR. GILLEN: Your Honor, I don't want to belabor the process and I want to be fair to both parties, but it's not appropriate when the witness is asked whether she remembers for her to look at that, at the article first. She should first say she doesn't remember, and then if she doesn't and she wants to look, I understand.

MR. HARVEY: Your Honor, I think I've established that the witness doesn't remember anything else, and I just want her --

THE COURT: Well, I understand Mr. Gillen's objection. It's not an inappropriate objection under the circumstances. How long is the article?

THE WITNESS: I think that was it. I don't remember anything else. The last thing I remembered when I looked at the part of the separation of church and state was when Bill was so exasperated about it at that meeting.

THE COURT: Then I think the answer is no to the question, and Mr. Gillen, no harm, no foul, and we can move on.

MR. GILLEN: Fair enough.


Q. Now, I'd like you to turn to what has been marked as P-46, please, and can you tell us what is that?

A. This is a June 9th newspaper article from the York Daily Record.

Q. Who's the author?

A. Joseph Maldonado.

Q. Did you read this article at or around that time?

A. Yes.

Q. Have you reviewed it more recently?

A. Yes.

Q. And by looking at this article, does this help you remember anything else that happened at the meeting that you aren't already told us about?

(Brief pause.)

A. I don't think so, except that there was an ongoing mention of that it's really important for fairness and balance, therefore creationism needed to be taught along with evolution.

Q. Now, after that meeting, or shortly after that meeting I should say, did you have a conversation with Mr. Bacsa about looking for a textbook?

A. Yes, I did.

Q. Who is Mr. Bacsa?

A. Mr. Bacsa is the assistant superintendent of the Dover area school district.

Q. Tell us what you can recall of that conversation with him.

A. What I can recall, and I was in the administrative office area and I was saying to him, "Well, Allen Bonsell at least has finally said publicly that he's interested in creationism being part of the school district," and Mr. Bacsa said to me, "Well, I don't think you'll have to worry because they'll never find a book that includes evolution and creationism in it."

Q. Did you attend any other -- did you know that there was a school board meeting scheduled for June 14th?

A. Yes.

Q. Did you attend that meeting?

A. No.

Q. Why not?

A. Because I was out of town.

Q. Did you attend any other board meetings that summer?

A. No.

Q. Why not?

A. I was out of town.

Q. And did you follow issues relating to those biology texts?

A. Yes.

Q. How did you do that?

A. My husband would bring the newspapers to me.

Q. And did you, in September did you attend any meetings of the Dover area school district board of directors?

A. Yes.

Q. Do you remember a meeting on September the 7th of 2004?

A. Yes.

Q. And did you attend that meeting?

A. Yes.

Q. Tell us what you remember about happening at that meeting.

A. I remember approaching the school board during public comments, and I spoke briefly about the book "Of Pandas and People," because at that time I had read it and I was very concerned about the book being considered at all as a reference book, and because I was so concerned, and I guess at the time there's certain, there had been a lot of comment about the book, I was encouraging Allen Bonsell to follow past practice of the board, which is to allow public comment or to have a planning meeting the first meeting of the month and an action meeting the second meeting of the month, so whatever action the school board was planning to take on this issue there would be plenty of time for the faculty and the community and even board members to find out about as much as they could about whatever they were going to decide to do.

Q. Why did you raise that issue?

A. Why?

Q. Yes.

A. Well, because I was really concerned about this book being part of the biology curriculum.

Q. Do you remember anything else that happened at the meeting on September the 7th?

A. On September 7th? Is that what you said?

Q. Yes.

A. No, only that I basically didn't get an answer from Allen when I was trying to have him make a commitment that yes, he would strive to follow past practice.

Q. Now, I'd like to ask you to look at what's been marked as Plaintiff's Exhibit 679. Can you tell us what that is?

A. It's a news article on September 8th from the York Daily Record.

Q. And who's the author?

A. Lori Lebo.

Q. Does looking at that article help you remember anything else that happened at the board meeting on September the 7th, 2004?

(Brief pause.)

A. I mean, I remember saying that to Lori that this is just one more embarrassment for Dover, because I really was appalled by that book "Of Pandas and People."

Q. Anything else you recall from that meeting after reviewing that article?

A. No.

Q. Do you remember a meeting on September the 13th of 2004?

A. Yes.

Q. And did you speak to the board on that occasion?

A. Yes.

Q. Do you remember what you said?

A. I remember I wrote out a statement with what I wanted to say, because I really wanted to try to make an impression on the board of how inappropriate I thought the course of action they looked like they were taking was.

Q. Did you save your notes on that statement?

A. Yes.

Q. Please turn to what's been marked as P-668. I'm not going to ask you to look at all of this. It's a series of, a collection of handwritten note, and I'd just like to ask you to turn to page 1033 in that document. It's actually the last page of the document.

A. Okay. Thank you.

Q. Are you at that page?

A. I am.

Q. Can you tell us what that is?

A. These are the notes, or the written statement I brought with me to that September meeting to read to the school board.

Q. And looking at that, does that help you remember what you said to the board on September the 13th of 2004?

A. Yes.

Q. Please tell us what you said.

A. May I read it, or do you want me to --

MR. GILLEN: No, Your Honor. I mean, she may not read the statement. If she can remember, that's fine. But it is hearsay.

THE COURT: What counsel is attempting to have you do is to have you look at that to refresh your recollection as to what you said. You don't have to recite it verbatim. If it refreshes your recollection you can, with your recollection refreshed you can paraphrase or summarize if that refreshes your recollection what you said at the school board meeting. But you shouldn't read it from the note.

THE WITNESS: So do you need me to read the entire thing first and then say what I said, or may I look at it and comment --

THE COURT: You certainly may have all the time you need to take a look at it, and if it refreshes your recollection then you can answer the question as to what it is that you said. This is not a test to have you recite it verbatim. If it refreshes your recollection then you can summarize or answer the question, but Mr. Gillen's objection is that you cannot read the note into evidence. That's quite right. So if you do it for that purpose, that's appropriate.

THE WITNESS: Okay. Thank you.

THE COURT: And while she's doing that let me ask counsel, it looks like you're going to be in with this witness for a while.

MR. HARVEY: Yes, Your Honor.

THE COURT: While don't we cover this question and then we'll break for lunch, or if you have several questions in this area, why don't you finish this area as to what you said at the meeting and then --

MR. HARVEY: I was, I was just going to ask her this question, ask her to tell us what she can remember saying, and I believe, Your Honor, that that does come in as a past recollection recorded, so that she could read the statement. And if she remembers reading the statement I believe she could read it.

MR. GILLEN: Your Honor, she's testified that these are notes of the statement she was going to make. I think that by any reasonable measure that's not recollection recorded. It's something she believes that she took with her to the meeting.

THE COURT: We could debate the finer points of what is past recollection recorded and we might not resolve it, but we're going to get a summary of the statement I suspect after she reads it. So I'll choose not to do that.

MR. GILLEN: And I wouldn't deprive the witness of a recollection.

THE COURT: All right. So we won't go to the more, to the finer points of past recollection recorded. We'll use the reference.

THE WITNESS: I absolutely remember reading this statement at the school board meeting.

MR. HARVEY: And would you please read it for us? I'm sorry, Your Honor, Mr. Rothschild had spoken to me when you last spoke, and I didn't hear your last comment.

THE COURT: It's always a problem when you have co-counsel.

MR. HARVEY: I know, I know, and I'll talk to him about that over lunch, Your Honor.

THE COURT: Mr. Rothschild goes to the penalty box. You can restate the question.


Q. That document that you're looking at that has the Bates number P-01033 on the bottom, can you tell us what that is?

A. This is a document, this is a copy of the papers that I brought with me that I read at the school board meeting.

Q. And did you read that verbatim?

A. I read it verbatim.

Q. Would you please read that for us?

A. I have --

MR. GILLEN: Your Honor?

THE COURT: No, it's not, we're not going to read the statement in. So that my ruling is clear, I don't view it -- if you want to break here and we want to debate this and you want to give me some time and you want to do it that way, I don't see it as necessarily past recollection recorded for the argument that Mr. Gillen made. However, we can do this two ways.

We can break here, hold the thought, I'll come back and I'll rule, or alternatively you can have it refresh her recollection and she can having had the recollection refreshed testify as to generally what she said. In other words paraphrase or summarize what she said, your choice.


Q. I'd be happy for you to summarize what you said at that meeting based on your review of the statement now.

A. The first thing that I did say is that the book was absolutely not appropriate for 9th grade. I then said that the book claimed to refute scientific biological origins, but I thought it was absolutely religiously based. And the third thing I said was that I urged the school board to really consider this strongly and to remember the oath of offices they took that they were sworn in as school board members, because I thought that this could lead to an expensive and protracted lawsuit and it would be harmful to the students and the district.

Q. Do you remember anything else you said? And you can look at it again.

A. Oh, I remember mentioning also that this had absolutely nothing to do with balance and fairness, but that it was merely introducing religion into the biology curriculum, and to pretend otherwise was pretty preposterous.

MR. HARVEY: Thank you, Your Honor. I have no further -- I mean, I have more questions.

THE COURT: For the witness.

MR. HARVEY: But on this line of questioning I'm done, Your Honor.

THE COURT: Okay. That will mark an appropriate time to break for lunch. We will break until approximately 1:45. We'll reconvene at that time for our afternoon session. We'll continue with this witness at that time.

(End of Volume 1 at 12:23 p.m.)


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