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Kitzmiller v. Dover Area School District

Trial transcript: Day 6 (October 5), AM Session, Part 1


THE COURT: Be seated, please. We welcome you all back for the continuation of the Kitzmiller et al. versus Dover Area School District. et al. trial. We remain in the plaintiff's case, and you may call your next witness.

MR. ROTHSCHILD: Good morning, Your Honor. The plaintiffs call Dr. Barbara Forrest.

(Dr. Barbara Forrest was called to testify and was sworn by the courtroom deputy.)

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

THE WITNESS: Barbara Forrest. B-A-R-B-A-R-A, F-O-R-R-E-S-T.



Q. Good morning, Dr. Forrest.

A. Good morning.

Q. Where do you live?

A. I live in Holden, Louisiana.

Q. Are you married?

A. Yes.

Q. And do you have children?

A. I do.

Q. How many?

A. I have a son 25, and another son who is 20.

Q. What do you do for a living?

A. I'm a professor of philosophy at Southeastern Louisiana University.

Q. Matt, could you pull up Exhibit P-348? Dr. Forrest, is P-348 a copy of your curriculum vitae?

A. Yes, it is.

Q. And is it an accurate representation of your education, professional experience, and accomplishments?

A. Yes.

Q. What subjects do you teach at Southeastern Louisiana?

A. I teach philosophy 301 and philosophy 302, which are introductory courses. I teach philosophy 310, critical thinking. I teach philosophy 315, the philosophy of history. Philosophy 417, intellectual history. I teach an independent studies course, philosophy 418. I teach history 630, which is a graduate seminar in the history of western thought, and I teach western civilization.

Q. Do you have a doctorate degree?

A. I do.

Q. And where did you take that degree?

A. Tulane University.

Q. Did you write a dissertation?

A. Yes.

Q. What was that dissertation about?

A. It was the study of the influence of Sidney Hook's naturalism on his philosophy of education.

Q. And before we go into that, are you a doctor of philosophy?

A. Yes.

Q. Who is Sidney Hook?

A. Sidney Hook was a very prominent American philosopher in the 20th century.

Q. And -- I'm sorry?

A. And a close disciple to John Dewey.

Q. Do you subscribe to any particular school of philosophy or approach to philosophy?

A. Yes.

Q. And what is that?

A. I place myself in the tradition of John Dewey and Sidney Hook, which is called pragmatic naturalism.

Q. And what do you mean by that, pragmatic naturalism?

A. Well, we'll take the pragmatic part first. That reflects an American school of philosophy, pragmatism, and for Dewey and Hook as they understand it, it means that an idea is tested by whether it helps us resolve a situation of doubt or uncertainty or helps us resolve a, solve a practical problem, and one of the things that they noted was that the patterns of inquiry that are part of the everyday process of answering questions, resolving uncertainty, or solving problems, really matched the processes that are used in science. So those patterns of inquiry were not invented in science, but they were used very effectively, very systematically in science. Those patterns of inquiry call upon the cognitive faculties that human beings have, and because they do, those faculties don't reach beyond the natural world into the supernatural world. So the conclusions that we reach about the world are naturalistic, hence the pragmatic naturalism part.

Q. And for Wes's benefit I'm going to ask that you slow down a little bit.

A. Thank you.

Q. How does that approach of pragmatic naturalism figure into scholarly research?

A. Into my scholarly research? One of the things that pragmatic naturalism emphasizes very strongly is that conclusions about the world must be grounded in data, and the same applies to public policy issues. One of the things that Sidney Hook for example stressed strongly is that when philosophers become involved in public policy issues they must know the facts. So that it really does stress the use of empirical data and being very careful about the acquisition of that data.

Q. Are you familiar with the term philosophical naturalism?

A. Yes.

Q. What does that mean?

A. Philosophical naturalism is a comprehensive understanding of reality which excludes the supernatural. It is one which looks at the natural world as the entirety of what exists.

Q. And are you familiar with the term methodological naturalism?

A. Yes.

Q. What does that mean?

A. Methodological naturalism is really another term for scientific method. It's a regulative principle. It's a procedural protocol that scientists use. It means very simply that they look for natural explanations for natural phenomena.

Q. Is philosophical naturalism part of the scientific method?

A. No, it's not.

Q. Have you focused your academic research on any particular subject?

A. Yes.

Q. And what is that?

A. I have focused my research on issues surrounding evolution, the teaching of evolution, and the creationism issue.

Q. When you use the term creationism, what do you mean?

A. Creationism means a number of things. First and foremost it means rejection of evolutionary theory in favor of special creation by a supernatural deity. It also involves a rejection of the established methodologies of science, and this is all for religious reason.

Q. And when you say the established rules o science, are you referring to methodological naturalism?

A. Yes. The naturalistic methodology that I just explained.

Q. Is there only one type of creationism or are there multiple kinds?

A. There are multiple kinds.

Q. Can you describe the types of creationism?

A. Well, the oldest kind is young earth creationism.

MR. MUISE: Your Honor, I'm going to object. He's asking questions of explanation, she's obviously offering her opinions now on this case, and we obviously want to voir dire her about her ability to offer opinions, and this is going into really the heart of what her opinions are, the various forms of creationism and so forth.

MR. ROTHSCHILD: Your Honor, I'm not going to go into opinions in detail, but I think to ground us, she's using terminology and I think it's important even for the voir dire and for your fact finding on Dr. Forrest's qualifications to understand what we're talking about here.

MR. MUISE: Again, Your Honor, it's a very fine line here between what the definition and what she's actually offering in terms of what an opinion is. If we would disagree with what obviously her "definitions," they're really sliding into opinions at this point.

THE COURT: I think that given the hybrid nature of this proposed expert that some inquiry into this areas is probably necessary. I'll overrule the objection as it relates to that particular question, which is on young earth creationism, Mr. Muise, but certainly that would not estop additional objections if you feel that the witness is getting too deeply into those areas. It think it's essential to the plaintiff's examination in the voir dire statement of this witness to get into some of those areas. So it's certainly a, it's an appropriate objection under the circumstances, but I don't think that she's far enough into the area that I find an objection needs to be sustained. So we'll overrule the objection. We need to proceed.

I don't know that the question was answered. Wes, do you want to read back, or do you recall the question?

MR. ROTHSCHILD. If you could read back the question, Wes, that would be great.

THE COURT: Thank you, Wes. (The record was read by the reporter.)

THE WITNESS: Would you like me to start over with that answer?

THE COURT: You may. You can start, my recollection now is that you were, the objection was rendered mid-answer, so you can restart. All right?

THE WITNESS: There is young earth creationism, which is the view that the earth is six to ten thousand years old. There's also old earth creationism, which is the view that the earth is several billion years old.


Q. As part of your study of evolution and creationism have you studied the subject of intelligent design?

A. Yes.

Q. And are you familiar with intelligent design being described as a movement?

A. Yes.

Q. And who describes it that way?

A. The proponents of intelligent design, its leaders have described it as a movement.

Q. And as you understand how they're using the term, what do they mean by the term movement?

A. It's an organized effort that centers around the execution of a particular program that they have.

Q. Are you familiar with other scientific topics or theories being described as a movement? Is there a chemistry movement or a germ theory movement?

A. I've never heard it described as such, no.

Q. How do you study a movement?

A. You look at everything they do. I've looked at their writings, the things that they themselves have written. You look at interviews that have been done with them. I've looked at speeches that they've given. I've listened to speeches. I've read articles about them. I've have even looked at their conference proceedings. You look at everything.

Q. Do you have specialized knowledge about the history and nature of the intelligent design movement?

A. Yes.

Q. And how did you acquire that knowledge?

A. By doing research into the movement's activities, looking at all of their activities, looking at what they have written, all of the stuff, the things that I just mentioned.

Q. Do you discriminate or distinguish between primary sources and secondary sources in doing your work?

A. Yes. There is a difference.

Q. And explain to us how you use the terms primary source and secondary source.

A. Well, in scholarship, a primary source is something written by let's say the person that you're studying, a book or an article that's been written by a person. Secondary sources are sources that are about those people or about their work, articles.

Q. And is it common in your academic discipline to use both kinds of sources to study whatever topic you're studying?

A. Yes. That's standard procedure.

Q. And have you in fact done that in your study of the intelligent design movement?

A. Yes.

Q. Have you interviewed members of the intelligent design movement?

A. Directly no.

Q. And why not?

A. I wanted to study the movement and understand it by looking at the way they explain it to their intended audiences. I wanted to see how they themselves explain it when they're actually addressing their audience.

Q. For how long have you done research on the subject of intelligent design?

A. Going on now if you count the two scholarly articles I published in 1999, 2000, going on now about eight years.

Q. And in addition to those articles have you written a book on the subject of intelligent design?

A. Yes, I've written a book.

Q. Matt, could you pull up Exhibit 630? Is this the cover page of the book you wrote on the subject of intelligent design?

A. Yes.

Q. That's called Creationism's Trojan Horse: The Wedge of Intelligent Design?

A. Yes.

Q. You're obviously listed as the first author. The second author there, Paul Gross, who is he?

A. Paul R. Gross, my co-author, is a scientist.

Q. Who is this book published by?

A. Oxford University Press, 2004.

Q. And is that a leading academic press?

A. It's one of the world's leading academic presses, yes.

Q. The title includes the term "the wedge," the wedge of intelligent design. Why did you use that word?

A. That's a word that the intelligent design leaders themselves use. It's a word they use to describe their movement which is guided by a document called the Wedge Strategy. So it's a term that they coined.

Q. And who coined, do you know who coined the term?

A. The wedge? Yes. Phillip Johnson.

Q. Who is Phillip Johnson?

A. Phillip Johnson is the de facto leader of group. He's the gentleman that brought the other members of the group together. He's also the advisor for the Center for Science and Culture.

Q. What is Mr. Johnson's background? Is he a scientist?

A. No. He's retired now, but he was a law professor at the University of California at Berkley.

Q. And you referred to the Center for Science and Culture. What is that?

A. That was an organization that was established in 1996 under the auspices of The Discovery Institute. In 1996 it was actually called the Center for the Renewal of Science and Culture. That is the organization in which the strategy of the intelligent design movement is being formally carried out.

Q. And you referred to a document, what is that document called?

A. It's a document called The Wedge Strategy.

Q. And who wrote that?

A. Members of the intelligent design movement. It's a tactical document that they, in which they outline their goals and their activities.

Q. Does it have any connection with The Discovery Institute?

A. Well, yes. It was written under the auspices, it was written, it's a formal statement of the strategy of The Center for the Renewal of Science and Culture.

Q. And we'll go into that later after the voir dire. Can you tell us what Creationism's Trojan Horse is about?

A. The book actually looks at the way the intelligent design movement is, or The Center for the Renewal of Science and Culture, now called the Center for Science and Culture, looks at the way they're executing the Wedge Strategy, looks at all of the activities that they have engaged to execute the various phases of the strategy. The book also does, my co-author does some scientific critique in the book, and we also analyze the movement and explain the significance of these activities.

Q. How did you go about researching that book?

A. I went about researching the book by looking at all of, every piece of written information I could find that would explain what this movement is about. I did a great deal of, spent three and a half years doing empirical research.

Q. Using primary sources and secondary sources?

A. Both, yes.

Q. Did your research include anything relating to scientific production?

A. Yes, it did.

Q. What did you do?

A. I wanted to find out if there were any articles in peer reviewed scientific journals using intelligent design as a biological theory. So I searched the scientific databases where those articles would be indexed.

Q. What conclusions did you reach in Creationism's Trojan Horse?

A. That intelligent design --

MR. GILLEN: Objection, Your Honor. He's specifically asking for the conclusions, which I believe would be a direct question going to her opinion that she's going to be offering in this case.

MR. ROTHSCHILD: Your Honor, this is about her scholarly work, writing Creationism's Trojan Horse, not about her opinions in this case, although they will be very similar.

THE COURT: Well, I think that probably now crosses the line and exceeds appropriate voir dire. I think it's sufficient for qualifications to get into her scholarly works, the methodology that she utilized in compiling the scholarly work, time spent for example, but I think a question which touches on the ultimate issue, which that was, likely now indicates that Mr. Muise objection is well founded. So I'll sustain the objection on that question.

MR. ROTHSCHILD: Thank you, Your Honor.


Q. Have you done -- besides Creationism's Trojan Horse have you done other writing on intelligent design?

A. Yes.

Q. And are those reflected on your curriculum vitae?

A. Yes, they're there.

Q. Do you have expertise in philosophical issues relating to naturalism?

A. Yes, I've done some work in that.

Q. Do you have expertise in the history and nature of the intelligent design movement, including its creationist roots?

A. Yes.

Q. Did you write an expert report in this case?

A. Yes.

Q. How many expert reports did you write?

A. I wrote the expert witness report, and I wrote a supplement to that report.

Q. What was the first expert report about?

A. It really very closely mirrors the research I have done, for example the research I did on book, it's a summary of actually what the, the work I did on the book. It talks about the nature of the intelligent design movement.

Q. And what kind of materials did you rely upon in preparing your first report?

A. I relied mostly on the materials, the same materials I used in writing the book, and also some materials on file in the archives at the National Center for Science Education.

Q. What was the second report about?

A. The supplementary report is about the textbook Of Pandas and People.

Q. And what materials did you rely upon to prepare that report?

A. I relied on materials that were issued under subpoena from the Foundation For Thought And Ethics supplied to me by the legal team.

Q. And Matt, if you could pull up Exhibit 347? Is that the first page of your first expert report?

A. Yes, it is.

Q. And Matt, if you could pull up Exhibit 349, is that the first page of your supplemental expert report?

A. Yes.

MR. ROTHSCHILD: Your Honor, at this time I'd like to move to qualify Barbara Forrest as an expert in philosophical issues relating to naturalism and the history and nature of the intelligent design movement, including its creationist roots.

THE COURT: All right, Mr. Muise, you may question on qualifications.

MR. MUISE: Thank you, Your Honor.



Q. Good morning, Dr. Forrest.

A. Good morning.

Q. You're not an expert in science, correct?

A. No, I'm not a scientist.

Q. And you have no formal scientific trai ni ng?

A. No.

Q. You have no training in biochemistry?

A. No.

Q. You have no training in microbiology?

A. No.

Q. You're not trained as a biologist?

A. No, I'm not a biologist.

Q. So it would be true to say that you don't know whether Darwin's theory of evolution has provided a detailed testable rigorous explanation for the origin of new complex biological systems, would that be accurate?

A. Actually that is the kind of knowledge that any person that has some understanding of science would know, an educated person would know that that is an established theory.

Q. But with regard to my question, do you know whether or not Darwin's theory of evolution has provided a detailed testable rigorous explanation for the origin of new complex biological features?

A. As my understanding is, yes, it has.

Q. Do you know whether the theory of evolution, in particular natural selection, can explain the existence of the genetic code?

A. Excuse me, repeat the question, please?

Q. Sure. Do you know whether the theory of evolution, in particular natural selection, can explain the existence of the genetic code?

A. My understanding is that natural selection does offer some explanation for that. I could not give you the explanation as a scientist would give it to you of course.

Q. Do you know whether the theory of evolution, in particular natural selection, can explain the development of the pathways for the construction of the flagellum?

A. As I understand it there is work being done on that as of now, yes. It does offer some explanation.

Q. Do you know whether the theory of evolution, in particular natural selection, can explain the existence of defensive apparatus such as the blood clotting system and the immunity system?

A. All of those things are being addressed, yes.

Q. You have no particular scientific expertise to be able to address those questions, is that correct?

A. No, sir, that's not my area of expertise, no.

Q. So it would be fair to say that you're not qualified to give an opinion as to whether the bacterial flagellum is irreducibly complex, meaning whether or not it can be produced by a step-by-step Darwinian process?

A. That's not my area of expertise.

Q. And it would also be true that you wouldn't be qualified to -- I'll repeat that question. Is it also fair to say that you're not qualified to give an opinion as to whether the blood clotting cascade is irreducibly compl ex?

A. That's not my area of expertise.

Q. And you're also not qualified to give an opinion as to whether the immune system is irreducibly complex, is that correct?

A. That is not my area of expertise.

Q. So, ma'am, you're not qualified to give an opinion as to whether the claims made by intelligent design advocates such as Michael Behe are scientific, is that correct?

A. I have relied on the work of established scientists such as my co-author Paul Gross, and they have a tremendous amount of expertise, and that is what I have relied upon.

Q. But in terms of your particular expertise, you're not qualified to give that opinion, is that correct?

A. No, sir, and I have never claimed to be.

Q. Ma'am, you're not an expert in religion?

A. No.

Q. You're not an expert in the philosophy of science?

A. I'm not a philosopher of science.

Q. You're not an expert in the philosophy of education?

A. No. That's not the area that I practice in as a philosopher, no. Although I did do quite a bit of work on my dissertation with respect to Sidney Hook about that.

Q. Ma'am, you're not a mathematician?

A. No.

Q. You're not a probability theorist?

A. No.

Q. You do not possess formal training in mathematics, is that correct?

A. No.

Q. You have no - -

A. Well, college math.

Q. Certainly. And you have no doctorate in mathematics, is that correct?

A. No, my Ph.D. is in philosophy.

Q. So, ma'am, you're not qualified to give an opinion as to whether Dr. Dembski's claim of complex specified information is valid, isn't that correct?

A. That is not my area of expertise and I have not offered opinions on that.

Q. Ma'am, this is a concept that he wrote about in a book published by Cambridge University Press, correct?

A. The Design Inference, yes.

Q. So you're familiar with The Design Inference?

A. Yes, I know that he's written that book, uh-huh.

Q. And Cambridge University Press is similar to like the Oxford University Press is a peer reviewing academic press?

A. Yes.

Q. And again the book that Dr. Dembski wrote, The Design Inference, explains his ideas of complex specified information, correct?

A. Well, Dr. Dembski has written that that book does not address the implications of design theory for biology, so -- but that book is a highly technical book that is not within my area of expertise.

Q. And that book does discuss the concept of complex specified information, correct?

A. Yes, I believe it does.

Q. I want to explore your understanding of intelligent design as it relates to the opinions you intend to proffer in this court. Ma'am, is it your understanding that intelligent design requires adherence to the claim that the earth is six to ten thousand years old?

A. No, it doesn't require that, although there are young earth creationists integrally involved in the intelligent design movement.

Q. But again your answer is intelligent design does not require adherence to that tenet?

A. No, they themselves do not make that a requirement.

Q. Is it your understanding that intelligent design does not require adherence to the six day creation event that is a literal reading of the account in the Book of Genesis?

A. No, it does not require that. Intelligent design is a broader type of creationism.

Q. But it doesn't require a literal reading of the Book of Genesis, correct?

A. It does not.

Q. In fact, it doesn't require a literal reading of any scripture, correct?

A. It does not require a literal reading of scripture, but it is based on scripture.

Q. Is it your understanding that intelligent design requires adherence to the flood geology point of view advance by creationists?

A. It's my understanding that it does not require that.

Q. Is it your understanding that intelligent design requires the action of a supernatural creator?

A. Yes, it is my understanding that it does require that.

Q. Is that an assumption that you based your opinions on?

A. No, it's not an assumption. It's based on statements made by the movement's leaders.

Q. But your understanding that it requires the actions of a supernatural creator forms a foundation for the opinions you intend to offer in this case, right?

A. Yes. Based on the statements of the movement's leaders themselves.

Q. Now, ma'am, you spoke about during your initial examination by Mr. Rothschild this concept of methodological naturalism, correct?

A. Yes.

Q. And methodological naturalism is a convention that's imposed upon scientific inquiry, is it not?

A. No, it's not a convention that is imposed upon scientific inquiry. Methodological naturalism is a methodology. It's a way of addresses scientific questions. It reflects the practice of science that has been successfully established over a period of centuries. It's not imposed upon science. It reflects the successful practice of science.

Q. Well, you would agree it places limits on scientific expl orati on?

A. It does place limits on what science can address, that's correct.

Q. Should scientist be allowed to follow the evidence where it leads or should they be constrained to follow the evidence only where materialism allows?

A. Science by its nature and on the basis of its successful practice cannot address questions of the supernatural , and that's because the cognitive faculties that humans have will not take us beyond the reach of those faculties. And so science is really an intellectually quite humble process. It does not address supernatural claims. It has no methodology by which to do that.

Q. And are you aware of a claim advanced by Nobel laureate Francis Crick called "Directed Panspermia"?

A. Yes.

MR. ROTHSCHILD: Objection, Your Honor. This line of questioning is going well outside what would be relevant to qualifications.

MR. MUISE: Your Honor, she's testified about the methodological naturalism, and I'm just trying to make a searching inquiry as to her understanding of methodological naturalism, and its application in this case is how it's going to relate to her follow on opinions that I'm sure Mr. Rothschild is going to try to elicit.

MR. ROTHSCHILD: I think what Mr. Muise is doing is getting into a discussion of whether methodological naturalism is a valid methodology, is a representative methodology science or not. It's a perfectly appropriate question for him to ask Dr. Forrest as were asked of Dr. Pennock, but I'm not sure whether this is getting us in terms of qualification.

THE COURT: How does that go, Mr. Muise, to whether or not she's an expert in the area --

MR. MUISE: Your Honor, I think it also goes to the reliability of her follow on opinions that are going to be addressed by this witness.

THE COURT: I don't think it goes to reliability. No, I don't think it's close enough to the stated purpose of the witness, at least in part, which is an expert in methodological naturalism. I think we're going to get afield of that with the question. If she's otherwise qualified it's certainly a proper question on cross by you, but I'll sustain the objection.

MR. ROTHSCHILD: Thank you, Your Honor.

MR. MUISE: I have one more question along this line, Your Honor, but I think it goes to sort of the assumption that's going to be the basis for her opinion that I just wanted to elicit at this point.

THE COURT: Well, we'll see.


Q. Ma'am, is it your understanding that there's no dispute amongst philosophers of science as to whether methodological naturalism is a proper limitation imposed upon scientific inquiry?

A. There may be some dispute among philosophers of science, but there is really, that's not a question in dispute among the people who do the science, the scientists themselves. That is the way they do science. It reflects the established, the successful practice of science by the scientists themselves.

Q. So using methodological naturalism then as a procedural approach to science as opposed to just necessarily a philosophical approach to science?

A. It's not a philosophical approach. It's just a fancy term for scientific method. That's all it is.

Q. Do you believe it's improper for academics such as scientists and philosopher of science to challenge the popular convention of methodological naturalism?

A. People are certainly free to discuss it in any way they choose. The fact is that it reflects the only workable procedure that science has at the moment.

Q. Ma'am, you consider yourself to be a secular humanist, is that correct?

A. I'm affiliated with the secular humanist organization. I don't usually put a label on myself in that way.

Q. Is methodological naturalism consistent with your world view as a secular humanist?

A. Yes, it very much reflects what I explained about the pragmatic naturalism of the people John Dewey and Sidney Hook, in whose tradition I place myself.

Q. Do you see the theory evolution as a necessary feature of secular humanism?

A. It's not a necessary feature of secular humanism. The theory of evolution is something that virtually all secular humanists endorse because they have a great deal of respect for the practice of science.

Q. You mentioned in your testimony this concept of philosophical naturalism.

A. Yes.

Q. Is philosophical naturalism consistent with methodological naturalism?

A. Could you explain what you mean by consistent, please? Consistent with?

Q. Are they related in any way?

A. They are not the same thing. One can, for example a scientist uses the naturalistic methodology of science. That does not commit the scientist to the world view of philosophical naturalism. Philosophical naturalism takes you beyond scientific method.

Q. So for example Dr. Miller, the fact he testified that he does not, or that he rejects philosophical naturalism would be consistent with the way you just answered --

A. Oh, correct.

MR. ROTHSCHILD: Objection, Your Honor. This is going again well beyond the qualifications.

THE COURT: Well, she answered the question. I'll overrule the objection and let the answer stand.

Q. Ma'am, does the fact that methodological naturalism might coincide with your secular humanist world view, would that discredit methodological naturalism from consideration by scientists?

A. When you say that methodological naturalism coincides with the world view of secular humanism, if I could explain something about that? Methodological naturalism is used by every human being every day. Every human being who has to solve a problem, answer a question, uses it every day. It's completely noncontroversial, and so it coincides with just about any philosophical position that one might take on the nature of reality. It does not logically entail philosophical naturalism.

Q. Ma'am, you testified I believe that your area of expertise is in the nature and strategy of the intelligent design creationist movement, correct?

A. That is the subject of my book and a good deal of my published work, yes.

Q. Now, you call it intelligent design creationists, correct?

A. Right, yes.

Q. Now, describing it as creationists, is that your way to discredit the science of intelligent design without actually addressing the scientist claim?

A. Not at all. I use that term because the leaders, the movement's own leaders have used it. They have used the term creationist themselves.

Q. You do not address the scientific claims of intelligent design in your report, correct?

A. No, I didn't address the scientific claims in the report. My book does cover that because my co-author is a scientist himself.

Q. Well, you're going to be testifying today pursuant to your report, is that correct?

A. My testimony today is connected to my report, yes.

Q. Now, we heard testimony in this case demonstrating that the term evolution can have different meanings. It can simply mean change over time or it could also refer to the theory of evolution, for example natural selection. Does that comport with your general understanding of - -

A. There are various facets to evolutionary theory.

Q. Now, isn't it also true that the term creation has more than one meaning?

A. Yes.

Q. Could creationism --

A. Excuse me, if I could correct that, there are different types of creationism.

Q. Well, would you agree that creationism can simply mean an innovative design capable of bringing about biological compl exi ty?

MR. ROTHSCHILD: Objection, Your Honor. Mr. Muise cut off his line of questioning on my direct examination because it got into opinion testimony. Now he's cross examining on the meaning of creationism, and I don't see how this goes to qualifications.

THE COURT: Mr. Muise?

MR. MUISE: Again, Your Honor, she used the term intelligent design creation, and this is really going to go to the foundation of the opinions that she's going to be offering. I think it is related. It's one thing to elicit the opinions of creationism. It's another thing for her to describe what her understanding of that term is and whether or not she considered those various understandings in the opinions that she's going to be offering.

THE COURT: Well, let's look at it this way. Mr. Rothschild introduced her as an expert on the methodology, on methodological naturalism. We have covered that area. Also the history and nature of intelligent design, of the intelligent design movement, including its creationism origin. Now, if you want to ask what that means, ask it that way I think, rather than get into -- I think the nature of the objection is there are various types of creationism.

I think the question likely traipses over into appropriate cross examination if she's qualified as an expert. I'll allow you to press on creationism as she uses it and as she defines it. As it relates to her expert report I think arguably that's within qualifications. I'll sustain the objection to that particular question. So you'll have to rephrase it.

MR. MUISE: If I may, Your Honor, in part with your explanation, the point I just wanted to make is that she didn't use this, she doesn't define it this way. So it is sort of, it's contrary to you said it would be okay to ask her what she meant by creationism. My point is to say she didn't consider this definition of creation, which is sort of the alternative way of asking the same question that you've just referred to.

THE COURT: What definition?

MR. MUISE: The one that I used, Your Honor, an innovative design capable of bringing about biological complexity.

THE COURT: Well, if she didn't use that, again to question her in that way is appropriate cross, assuming that she's admitted. I say that again. It's how she uses it, not how she didn't use it, that's at issue as it relates to her credentials in my view.

MR. MUISE: Then we'll save that one for cross then, Your Honor.


Q. Dr. Forrest, you claim to be an expert on the so-called Wedge Strategy, correct?

A. That's the subject that I did research on for three and a half years, yes.

Q. And this is reflected in the document The Wedge Strategy, is that correct?

A. That's the title of the document.

Q. Now, is it true that that document was purportedly stolen from the office of Discovery Institute?

A. According to Dr. Meyer that's what happened.

Q. Did you ever talk to Dr. Meyer about that?

A. No.

Q. And this document was a fund raising proposal by Discovery Institute, correct?

A. That's the way they have described it.

Q. Now, I believe you answered a question to, you answered one of Mr. Rothschild's questions indicating that you have never interviewed personally any Discovery Institute employee or fellow regarding the nature and strategy of this intelligent design movement that you're going to be testifying about, is that correct?

A. No, I did not.

Q. Have you personally interviewed any Discovery Institute employee or fellow regarding any of the claims in your report or what you re going to testify about today?

A. No.

Q. Now, in your report you rely heavily on this so-called Wedge Document. Yet you do not rely on Discover Institute's statement in a document that they drafted called The Wedge Document: So What?, which explain the genesis and the nature of the purpose of the Wedge Document, is that accurate?

A. That document was drawn up after my book was published. That was produced quite a while after I did my work.

Q. And that was produced though before you wrote your report, correct?

A. Before, yes, before I wrote the report.

Q. So what is the methodological criteria you use to rely heavily on Discovery Institute's Wedge Document, but then to disregard Discovery Institute's own explanation of what the nature and purpose of this document is?

A. The Discovery Institute, or the Center for the Renewal of Science and Culture has provided a wealth of written material that I have consulted. I wanted to, if I was going to use that document as a reference point in my research I needed to authenticate it, and I wanted to find authentication of the document independently of what the people at the Discovery Institute might actually say to me if I had interviewed them. So I found independent verification of its authenticity on their own web site.

Q. But again, ma'am, my question is you did not rely at all on the Discovery Institute's own published written explanation of what the Wedge Document actually is, which would be a primary source document based on your testimony, correct?

A. That information came considerably after I had completed my research for the book. I needed independent verification that the document was authentic, and I found it in text on their web site.

Q. But, ma'am, the explanation came after you wrote your report in which the --

THE COURT: I get the point. Let's move on.

Q. Now, ma'am, as we know you prepared an expert report and a supplemental report for this particular case which is going to serve as the basis for your testimony, is that accurate?

A. Correct.

Q. And again it's the report that's serving as the basis of your testimony?

A. Yes.

Q. Not your book?

A. The report, which reflects my book actually.

Q. With the exception that we just went through?

A. Right.

Q. Now, I believe you testified on direct that your testimony, your report and your testimony are based in large part on statements that were made by people that you claim to be leaders of the intelligent design movement?

A. They're not people that I claim to be leaders. They are leaders, and they provided a wealth of written material for me to use.

Q. And I believe you stated that you consider those statements to be the best evidence of the nature of the intelligent design movement?

A. I would take those statements that they make and the materials they produced to explain what they're doing to be the best evidence of what they're doing, yes.

Q. Except their explanation of Wedge Document, correct?

A. Which was written only in response to chapter 2 of my book.

Q. Now, I believe your report, and I believe you also testified here, you indicated that primary data consists of statements by not only the Wedge leaders, but their allies and supporters, is that correct?

A. Well, primary data would be statements by the Wedge leaders themselves, things that they have written. That would be what I would consider primary data. Things that are stated by their allies and supporters I would consider secondary data.

Q. And you relied on that secondary data to form your opinions that you're going to offer in this case?

A. I relied both on primary and secondary sources.

Q. And your focus on these allies and supporters was the focus on the religious alliances and association of members of the intelligent design, correct?

A. That's correct.

Q. So is it your opinion that because intelligent design proponents associate with religious organizations that this shows that the scientific claims that they've made aren't science?

MR. ROTHSCHILD: Objection, Your Honor. Again this has nothing to do with qualifications. It's perfectly appropriate cross examination of the opinions that Dr. Forrest is going to deliver, but we're spending a lot of time here doing just that which Mr. Muise or Mr. Thompson will have the opportunity to do after I have asked her about her opinion.

THE COURT: The operative word I think in your question was opinion that may be troublesome. But I'll let you speak to it, Mr. Muise.

MR. MUISE: Your Honor, as we intend to show during this voi r dire that she selectively takes statements and focuses on certain alliances to the exclusion of all the scientific evidence, all the scientific work, to reach her subjective conclusion, and I'm just going through to demonstrate that her methodology is fundamentally flawed.

THE COURT: Well, an expert's conclusion is necessarily subjective. Can we all agree on that?

MR. MUISE: To some point, Your Honor. I mean, that's the whole point of the Daubert is to understand that there's some sort of a methodology that is a reliable methodology that is a reliable methodology that you're going to apply.

THE COURT: Well, even if I open the gate under Daubert for an expert, that expert is testifying in a subjective fashion, isn't it? Or she?

MR. MUISE: Your Honor, if you have a historian who for example only looks at statements from Southerners and they conclude that the South won the Civil War, I think you could say that there's a problem with the reliability of that testimony.

THE COURT: Admittedly there is a somewhat indistinct line here, and I understand that you're trying not to cross the line. This is a hybrid expert. This expert I think we can all agree doesn't fit within the express criteria in Daubert. You'd have to struggle to go through the multipart test and to apply it to this particular expert. However, some of your questions go to weight quite clearly, and it is undoubtedly going to be your purpose during cross examination, if the witness is admitted, to talk about what's not included or what is misunderstood or was never considered as it relates to her report. Now, it does cross the line on qualifications as it gets to the comprehensive nature of what she looked at and didn't look at, and I would ask that you restrict your questions to that. Now, you have questioned her in that area for example. The subsequent statement which quite clearly at least from the court's standpoint came out after her book as it related to the Wedge Strategy, I think that that's appropriate for the purpose of credentials and for the purpose of voir dire, but I think your most recent question did cross that admittedly indistinct line, and I'll sustain the objection.


Q. Ma'am, again looking at the data that you relied on, is it true that the data with regard to the associations was focused on associations with religious organizations and religious affiliations?

A. Those are not their only associations. Those are important ones, but those are not the only ones, and I did look at some others. For example, they formed associations with members of parts of education for example. So there are others. The religious ones are important. They're not the only ones.

Q. And the focus for the purpose of your opinions was the focus on those religious organizations, is that correct?

A. As the movement describes itself in looking at the associations which they themselves have cultivated, that was information that I needed to examine and to include in my research and my writing. It's an important part of what they do, and it actually is a stated part of their strategy to form those associations.

Q. Now, ma'am, it's true this Wedge Document serves as the foundation for a majority of your opinions, is that correct?

A. It's a reference point. It's a reference point for my work. It certainly is not the entire foundation of it, but it's an important reference point.

Q. You have no evidence that the board members of the Dover area school district had any knowledge of this Wedge Document, is that correct?

A. I have no evidence of that.

Q. And in your deposition you were asked whether you believe that the people who prepared the policy at issue in this case were acting under the guidance of the so-called intelligent design movement, and you answered, "I have no way to know." Is that correct?

A. That's correct. I have no knowledge that they were acting in that fashion.

Q. Ma'am, you're a member of the National Center for Science Education?

A. I'm on their board of directors and I'm also a member.

Q. And member of the ACLU?

A. Correct.

Q. You're a member of the National Advisory Council of Americans United for the Separation of Church and State?

A. Yes, that's correct.

Q. And you're a member of the New Orleans Secular Humanist Association?

A. That's correct.

Q. And that association is affiliated with the Council of Secular Humanists?

A. That's correct.

Q. Now, ma'am, you said your opinions are going to be based in large part on this primary source data, which I believe you described as statements of certain proponents of the intelligent design?

A. The writings of the proponents of intelligent design.

Q. Now, prominent scientists have made non-scientific claims about Darwin's theory of evolution. That's true, correct?

A. Could you give me an example of that, please?

Q. Certainly. Richard Dawkins, you know who he is, correct?

A. Yes.

Q. A prominent biologist and Darwinian supporter?

A. Yes.

Q. Wrote a book called The Blind Watchmaker?

A. Yes.

Q. And you cite this book in your report, correct?

A. Yes. I cite many things in my report. I'm sure it's in there somewhere.

Q. I believe it's actually on page 17 at footnote 63?

A. Yes, I have a couple of hundred footnotes.

Q. And in your report you claim this book is "considered a classic popular explanation of evolution theory."

A. Yes, it is.

Q. Now, in this book Dawkins claims that, "Darwin made it possible to be an intellectually fulfilled atheist." Are you aware of that?

A. Yes, he does make that statement.

Q. Are you aware that the Council for Secular Humanists gives out an award for the humanist of the year?

A. Humanist of the year? Yes, it's an award they give out.

Q. And Richard Dawkins received that award in 1996?

A. I'm not specifically aware of that, but --

Q. You're aware that in his acceptance speech he stated, "Faith is one of the world's great evils, comparable to the smallpox virus but harder to eradicate."

A. I don't have any knowledge of that speech.

Q. Do you agree with that statement?

A. Would you repeat it, please?

Q. "Faith is one of world's great evils, comparable to the smallpox virus, but harder to eradicate.

A. No, I don't agree with that.

Q. Do you know who Stephen J. Gould, the late Stephen J. Gould was?

A. Yes, a very well known paleontologist.

Q. From Harvard University?

A. Right. He's deceased.

Q. Correct. And he claimed, "Biology took away our status as paragons created in the image of God," and, "Before Darwin we thought that a benevolent God had created them." Are you aware that he made those claims?

A. Yes.

MR. ROTHSCHILD: Your Honor, I'm going to object to this line of questioning. It has nothing to do with qualifications.

MR. MUISE: Your Honor, again it's going to go to the methodology that she's applying in this case. She's saying she's rely on primary statements of individuals, of intelligent design movement leaders to reach her opinion.

MR. ROTHSCHILD: I'm sure the --

THE COURT: Let Mr. Muise finish.

MR. MUISE: I'm going to demonstrate that you've got supporters of the Darwinian theory of evolution making non-scientific claims, but that does not go to the scientific nature of the underlying claims that they're making. It goes to the heart of what she -- what they're trying to propose her and offer as an expert, it goes right to the heart of the methodology that she's applying in this case.

THE COURT: Well, the essential point that you're attempting to make I assume by your questioning is that things were left out.

MR. MUISE: Not necessarily that things were let out, but that the whole methodology is unreliable that she's applying here.

THE COURT: Well, why was it unreliable? Because there were certain things, areas, quotations, treatises that were not considered or were left out of the analysis? Isn't that the point that you're trying to make?

MR. MUISE: Well, I think the point is to show the fallacy of --

THE COURT: But you didn't answer my question. You are attempting to show it appears by your questions that the witness, the proposed expert witness does not cite or therefore presumably didn't consider certain statements that are not in her report or certain activities by individuals you're naming in your cross examination. Isn't that what you're doing?

MR. MUISE: I am asking those questions, Your Honor, to set up the question regarding the methodology that she employed. So it's sort of a necessary predicate to get to the question regarding the methodology that she employed in this case.

THE COURT: I think we're going to make this unduly difficult, and this could go on endlessly. Let's break it down again. Do you or do you not controvert at this stage that the witness is an expert on methodological naturalism?

MR. MUISE: Your Honor, I would say no. In fact, she stated specifically she's not an expert in the philosophy of science. This deals directly with that. She said it's a method employed by scientists. She is not trained as a scientist. She has no scientific claims. She is using this as imposing some sort of broader world view, and you can look specifically at how she's approaching her attack of intelligent design is on the non-scientific claims made by scientists, and she doesn't even address any of the scientific claims. So with terms of methodology, she's a philosopher. She's not a philosopher of science and she's not a scientist. Methodological naturalism is a philosophy imposed on science.


THE COURT: Let's take just that portion of it.

MR. ROTHSCHILD: Her dissertation is about she's a naturalist and she is intimately familiar with pragmatic naturalism and philosophical naturalism and mythocological naturalism. She is not trained as a philosopher of science, but interpreting these areas are at the core of her work. It's what she writes about. If you examine her curriculum vitae, she has written on this subject, not just about creationism and intelligent design, but about the issues of naturalism generally.

THE COURT: Well, here's -- and then the further purpose stated by Mr. Rothschild is the history as I said earlier and nature of the intelligent design movement, including its creationism origins. Now, if I understand your question, Mr. Muise, correctly, and I'm not sure that I do, but your concern, you don't want her qualified at all, I recognize that, but your particular concern goes to her bona fides as they relate to a scientific background. Is that a fair statement?

MR. MUISE: That's part of it, Your Honor, because she does make claims in her report. I'm not sure how she's going to say initially she doesn't believe intelligent design is science, but yet she has no scientific knowledge for that.

THE COURT: I understand.

MR. MUISE: The other point is that, I mean this is going to cause the court to really go off after red herrings. She's focusing on non-scientific claims, and as I was intending to bring out further as Dr. Miller testified, sci enti sts often make non-scientific claims. That does not undermine the science that they're doing, and that's the point I'm making by bringing up Richard Dawkins, Stephen J. Gould, and the others that I'm going to bring up, and it's a fundamental flaw. There's two flaws. There's the fallacy of the ad hominem which is going to apply here and the fallacy of the genetic that she's going to apply here, and that methodology has no basis for the issues in this case. She's doing ad hominem attacks against certain members. She excludes altogether their scientific writings, and to present this to this court so that it can make a determination whether intelligent design is science or not, Your Honor, I lust think it is not expert opinion that is worthy of any of the issues that are in this case.

THE COURT: Mr. Rothschild is eager to respond.

MR. ROTHSCHILD: I am, Your Honor. We are not suggesting that Dr. Forrest is here to address the purported scientific claims of intelligent design. We put together a very complementary expert team which includes scientists, scientist philosophers, as well as theologians and experts on teachings, and someone who has studied the intellect, the intelligent design movement. The core question here, the question of whether intelligent design is science, is a very important question in this trial, but the core question is is intelligent design a religious proposition, and it is on that sublect that Dr. Forrest is extremely qualified based on all the empirical research she has done. If we were to suggest that she could answer Professor Behe's claim for irreducible complexity, Mr. Muise would rightfully cross examine her and have her disqualified on that sublect. That's not what she's here to do.

THE COURT: Well, I believe that Mr. Muise's concern as I read the report, that the report may cross into the scientific realm and may transcend the stated qualifications of this expert based on her co-author for example, based on the examination of other individuals. I think that that's a valid concern as stated by him. Now, I see this witness I will tell you based on what I have thus far perceived as a proper expert on methodological naturalism, despite Mr. Muise's objection.

I don't think that it's essential to that that she be qualified generally in the scientific area. I think that her credentials and experience would allow her to testify in that area as an expert. The stated purpose, the history and nature of the intelligent design movement, and having read the report obviously I think is a proper area for her to testify in.

I'm not going to prevent further questioning on this, but I'll tell you based on what I have seen that I think it is, that she's certainly qualified to do that by her scholarly work by the time spent studying the intelligent design movement. Now, within that area there may be portions of the report and they may generate testimony that is objectionable, and I am not preventing objections in those particular areas, and in particular as they relate to science.

So that would not disqualify her generally as an expert, and to move this along, if I admit her generally so that she can give a historical panoply, that is certainly well within the realm of possibility that we'll get objections as they relate to areas that are not necessarily historical in nature. And the questions that you asked with respect to the areas not considered, it's very difficult on voir dire as it relates to an expert and, you know, I view this expert not necessarily as a scientific "expert" but as I've used the term hybrid on a couple of different occasions to some degree, this witness is a historian.

I find that she may aid the court, but it certainly goes to weight and it's certainly appropriate cross examination concerning what she did not consider, and I think we're now going a little bit afield and you're getting into that. I think that that allows to admit her for these purposes and to not inhibit the defense on cross examination, as it goes to what was considered and not considered, strikes an appropriate balance, and we ought not get unduly hung up here on the qualifications stage. This is a bench trial. I understand that I'm going to hear additional testimony. I understand in particular I'm going to hear testimony from the defense on the scientific claims as they relate to intelligent design. So the gate keeping function of Daubert as you well know, although it's not limited by its terms to jury trials, but it is much more important, and you'll have to trust that the court can separate this out. So you can proceed with your voir dire questioning, but those are my general thoughts on this witness. I do understand your concern, but I don't see those concerns as being sufficient that I would prevent this witness from testifying. Now, I'll rule explicitly after you finish your voir dire, but I hope that gives you some guidance, and you may proceed.

MR. MUISE: Thank you, Your Honor, and if I may well, note Mr. Rothschild mentioned about her testimony regarding religion, and as she testified in voir dire she does not have expertise in religion. So that's another area that she has identified she doesn't have expertise.

THE COURT: Well, that may allow for parti cul arly precise and clinical either objections or points to be made on cross examination, but again I don't think it generally disqualifies her.

MR. MUISE: Your Honor, if I may indulge the court in one further inquiry, because the other component as you know that we have a lot of concern with is the 703 issue that's associated with her testimony, and all of these statements, which is the reason for the line of inquiry that I was pursuing with regard to non-scientific claims by scientists with a different world view no doubt is that her testimony, there's not way to unravel all those statements that she has put in her expert report to show which are the ones that are inappropriate and which are the ones that might very well be appropriate to whatever the inquiry is.

THE COURT: Well, what makes them inappropriate?

MR. MUISE: Well, You have hearsay on top of hearsay. You have the fact that she's, you know, just disregarding, one of the main things is the sources that she has chosen, which is some of the questions are going to get into, articles written by Dr. Dembski , he holds three Ph.D.'s, a theologian, a philosopher, a mathematician. She cites from the philosophy, theology, but not from the math, and concludes look, it's philosophy and theology, it's not science. But there's no way to unravel those --

THE COURT: Well, you're getting into the ad hominem attack issue that you raised earlier. You wouldn't gainsay that some hearsay may be admissible under 703 as part of an expert report, would you?

MR. MUISE: No, and I perfectly understand that it is as long as it's proper.

THE COURT: What's proper?

MR. MUISE: Proper is one that would demonstrate some measure of reliability and trustworthiness to actually support the claim that the witness wants to testify to.

THE COURT: And the whole purpose of my ruling on the motion in limine is to allow you to reserve an objection as it relates to any particular statement that's made. Now, it may be torturous to go through it that way, but that's the only way I know how to do it. So I can't, I'm not going to give a blanket prohibition and say that hearsay is inadmissible generally. On the other hand there may be a statement that for example, and I'm not saying it would be, but hearsay on hearsay, or that it would be taken out of context or particularly unreliable, you've got the opportunity to press on that or to object. So I'm not preventing you from doing that by admitting her. The purpose of admitting her as an expert does not mean to tie this up again, or to attempt to tie it up, that part and parcel every portion of this report can come in in testimony. It by no means indicates that, and you reserve any well placed exceptions, but we're going to be all morning on qualifications if we're not careful. I think to some degree you see where I'm going, and I think that this is it's a difficult area for counsel, it's a difficult area for the court, because this is not, if there is such a thing as a typical expert, this is not a typical expert. This is an area that is blazing new territory, and we're going to have to do the best we can with it, and I think the best way is to admit this witness for the purposes stated, however to allow the defense abundant latitude to object if it gets into, as her testimony gets into particular portions of the report.

MR. MUISE: Your Honor, I don't know if we're reaching the point in time in the morning where it might be appropriate for a break, because I wouldn't mind to have a moment to consult with co-counsel, and may we just cut off the voir dire and then proceed with --

THE COURT: I think that's probably well taken. Why don't we do that, and then I'll hear you -- well, I'll allow you to -- well, I'll give you some limited opportunity to complete your voir dire when we come back, but I want to move through it. I think we've got to cut to the chase here. We've been at this a while. We'll take about a 20-minute break. I'll give you limited opportunity for additional voir dire, I'll hear your objections if you have additional objections, and then we'll make a determination on the record with respect to admitting this witness and her testimony for the purpose stated by Mr. Rothschild. So we'll be on break for about 20 minutes.

MR. MUISE: Thank you, Your Honor.

(Recess taken at 10:12 a.m. Court resumed at 10:41 a.m.)


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