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Kitzmiller v. Dover Area School District

Trial transcript: Day 8 (October 12), AM Session, Part 2


THE COURT: Be seated, please. Mr. Walczak, you may continue with your direct examination.



Q. Thank you, Your Honor. Professor Alters, we just reviewed the statements of science associations on teaching of evolution and intelligent design. I want to now focus on positions of national science education and science teacher associations, and you testified earlier that they have taken positions on the teaching of evolution and intelligent design?

A. Yes. The NST A and NABT in particular, yes.

Q. Matt, if you could publish Plaintiff's 5exhibit 183, please? And if you could highlight the introduction there, please? First of all, Dr. Alters, do you recognize what's been marked as Plaintiff's Exhibit 183?

A. Yes. It's the NST A position on the statement of teaching of evolution.

Q. And we have highlighted the introduction here. If you might read this into the record, please?

A. Okay. "The National Science Teachers Association (NSTA) strongly supports the position that evolution is a major unifying concept in science and should be included in the K-12 science education frameworks and curricula. Therefore, if evolution is not taught, students will not achieve the level of scientific literacy they need. This position is consistent with that of the national academies, the American Association for the Advancement of Science, AAAS, and many other scientific and educational organizations.

NST A also recognizes that evolution has not been emphasized in science curricula in a manner commensurate to its importance because of official policies, intimidation of science teachers, and general public's misunderstanding of evolution theory, and a century of controversy. In addition, teachers are being pressured to introduce creationism, creation science, and other non-scientific views which are intended to weaken or eliminate the teaching of evolution."

Q. Now, is there anything in that statement which would suggest to a science teacher that there is doubt about the occurrence of evolution?

A. Nothing.

Q. Are you aware of anything else in this document that would support such a view?

A. No.

Q. I want to focus a little bit on the second paragraph in the introduction, and it talks about teachers being pressured and the intimidation of science teachers. Do you know anything about that?

A. Yes. I have talked with hundreds of teachers throughout North America, and a large percentage feel the pressure in various ways. Sometimes it's just media pressure, they might think they might get drawn into something that would occur, for example something like the Dover situation here. They feel that parents might not like evolution being taught in their classroom. Sometimes parents come directly in and talk to teachers.

Some teachers feel pressure from their administration where administration says can you de-emphasize the teaching of evolution. We've had a parent or two or more dislike the idea of evolution being taught in the classroom. NSTA, this organization here that the statement is from, within the last six or seven months did a survey of its members, fifty thousand, over fifty thousand science teachers, and over -- well, approximately one-third, 31 percent I believe it was, said they felt some form of pressure for teaching creationism, non-scientific beliefs in the science classroom. So yes, we have a lot of that, and it's very unfortunate that science teachers feel pressured to de-emphasize something so important as evolution.

Q. And this isn't pressure that's new on science teachers, is it?

A. Oh, no. From the best we can tell it's been around for a long time.

Q. And so how might this pressure -- and is this pressure from parents, or what are the sources of the pressure?

A. Well, it's perceived from the teachers, and they -- sometimes it's from the parents, sometimes it's even from students. They notice a student or two may be emotionally upset, or they detect some emotional upset in the student when they talk about evolution but not other subjects in the biology curriculum. So there's pressure even from that direction, but direct pressure from parents, indirectly through administration, just teachers reading about this sort of stuff gets in the media and they can drawn into some sort of social controversy. It concerns them.

Most science teachers don't go into teaching, the ones I'm aware of, thousands of them, don't go into science teaching to have a social fight. They go in because they want to turn kids on to science and have kids understand science better. So all of a sudden they're in sort of a, often a combative or at least perceive that it's going to be a combative situation, so they often take the road that has less friction, the non-combative route, and de-emphasize evolution. And many of them hold firm and teach evolution anyway and experience the discomforts of perceiving this pressure, real and perceived.

Q. So the result is even if there's no school board policy in a lot of districts, the teaching of evolution is diluted because of all these social pressures?

A. Yes.

Q. Now, you made a statement that these same pressures don't attend other areas of science.

A. Right. The teachers don't perceive any pressure against teaching, let's just say physics, trajectory. They don't feel pressure that there's going to be parents, a child being upset, administration coming in saying can you de-emphasize the trajectory portion of your physics course, right.

Q. And it doesn't happen in any other aspect of science?

A. Not to the extent -- evolution is special culturally. It's not special scientifically, it's another science, but it has a cultural aspect to it, and that's where the teacher feels this perceived pressure.

Q. So evolution is different than other scientific theories?

A. No, it's not different as a science. It's a science the same as any other science. It's just culturally different. Culture in general perceives evolution to be a different type of concept.

Q. And much of that controversy is based in religious beliefs?

A. Yes.

Q. And you in fact spent a good deal of your professional career studying how the religious beliefs affect the students' learning and the interaction in the classroom between the teaching of evolution and these creationist beliefs?

A. Yes.

Q. We're going to come back to that in just a minute. Matt, if you might now highlight the declarations in this NST A statement? Dr. Alters, I want to these take these one at a time here, and could you read the first bullet statement, please?

A. Yes. "Science curricula states science standards, and teachers should emphasize evolution in a manner commensurate with its importance as an underunifying concept in science and its overall explanatory power."

Q. Do you agree with that?

A. Yes.

Q. And is that consistent with a position taken by every major scientific association?

A. Yes.

Q. Could you read the second bullet point, please?

A. "Science teachers should not advocate any religious interpretations of nature and should be nonjudgmental about the personal beliefs of students."

Q. Do you agree with that?

A. Yes.

Q. Have you in fact spent much of your career studying what they're talking about in that statement?

A. Yes. I have done primarily over a thousand interviews with people concerning this very aspect.

Q. So there is a right way and a wrong way, or a better or worse way to teach about evolution?

A. Yes, absolutely.

Q. And could you talk to us about that?

A. Yes. There's many aspects, but I think the most fundamental is for a child to understand the difference between different ways of knowing, between a scientific way of knowing and a non-scientific way of knowing. Many students that bring into the classroom perceived problems with evolution because of their religious beliefs, whether they're accurate of their religious beliefs or not, they still often perceive that somehow evolution is against their religious beliefs.

A teacher expressing how science has certain rules and that everything in science is tentative and is open to new data coming in, and that you can have, you can play the game of science and you can still have your religious faith, too. They ask and answer separate questions. Science doesn't answer religious questions, and most religions don't have any significant problem with evolution. And getting students to understand then the first place that evolution does not deny the existence of God. It says nothing about God. It's outside of the realm of science.

So those two factors are fundamental. There's more, but those are fundamental, and those are hard to get students to understand that there's multiple ways of knowing. Most students have been raised and it's just a matter of maturation also as epistemological dualist, true/false, right/wrong, credit/no credit, you know. So which is right, you know, my religious belief or evolution?

And so the biology teacher, by expressing to students and having them learn that science has certain rules, and these certain rules are what's in play here and you can still have your answer from religion, but we're going to play the game of science in here, and evolution and science in no way answers or attempts to answer whether there's a god or not, you go a long way if you can get students to understand that.

Q. And would it be appropriate for a science teacher to say you have to believe in evolution?

A. Well, no, that would be inappropriate. It's level of confidence. What we want -- I use the term belief not as a religious belief. I use the term belief as level of confidence, and we want students to understand the game, let's take it outside of evolution for a moment to mathematics. We want the child to understand the games of mathematics so that two plus two equals four, and to have a high confidence level that within the game of mathematics, following the rules of mathematics, the logic of mathematics, the rationale of mathematics, how the mathematical community works, that yes, it is logical that the best explanation is two plus two equals four. Now, if the student says for religious beliefs, the student says hey, I've got religious beliefs that says two plus two equals five, then the teacher should say, "I respect that."

Q. So the same treatment should be given to a student who expresses some view opposing evolution in the classroom?

A. I'm sorry?

Q. So if a student says to a biology teacher for instance, you know, "I don't believe that we came from monkeys," the appropriate response from the science teacher is to be respectful and to do what?

A. Of course this class does not entertain religious beliefs, does not detract from them, nor does it add to them. It does not advocate any religious belief. It's a science course.

Q. And is that part of what you would consider good pedagogy?

A. Absolutely.

Q. Could you read the third bullet point, please?

A. "Policy makers and administrators should not mandate policies requiring the teaching of creation science or related concepts such as so-called intelligent design, abrupt appearance, and arguments against evolution. Administrators also should support teachers against pressure to promote non-scientific views or to diminish or eliminate the study of evolution."

Q. So does this statement from the National Science Teachers Association, the largest association of science teachers in the country and the world, takes a clear position on intelligent design?

A. Absolutely.

Q. And it says what?

A. That intelligent design is not science and should not be taught in a science classroom.

Q. I want to look for a moment at the last sentence in that third bullet point, "Administrators should support teachers against pressure to promote non-scientific views." Do you know why that is included in the statement?

A. Yes. With all due respect to all administrators everywhere, administrators often come to teachers and would like to have less confrontation, less commotion at schools, and often they will ask biology teaches is there a way we can de-emphasize a little bit of this evolution or take some of the aspects that maybe are causing some of this concern with parents and/or students or religious leaders out of the curriculum, out of your teaching. And so NST A here is apparently attempting to say administrators should be doing the opposite. They should be supporting the teaching of science.

Q. And that's because it's important to present evolution in as they say in the first bullet point to emphasize evolution in a manner commensurate with its importance as a unifying concept in science?

A. Yes, and what it tells me as a science educator is that this is such a big problem the NST A had to come out and actually make this statement. This statement, I haven't seen this statement concerning, you know, areas outside of evolution. Again back to trajectory, I haven't seen administrators also should support teachers against pressure for people who want to de-emphasize trajectory.

Q. If we could now go to the fourth bullet point, and if you could please read that?

A. "Administrators and school boards should provide support to teachers as they review, adopt, and implement curricula that emphasize evolution. This should include professional development to assist teachers in teaching evolution in a comprehensive and professional manner."

Q. And is that what you were just talking about a few moments ago about sort of the right way and the wrong way to teach evolution?

A. Yes. And this bullet particularly goes to the point of teachers often have pedagogical days some places they call them, in servicing they call them at other places. Basically what that means is days in which teachers, they go to their local conference, maybe a regional conference, maybe even a national conference or something, supported by their administration to learn more about how to teach evolution.

Q. And this would seem to support the notion that the teaching of evolution is different and because students have religious sensitivities that it may require additional professional training and support?

A. Yes, it is. It has more of that possibility of perceived conflict than most other areas of science, if not all.

Q. And do you in fact teach teachers that they need to seek support in learning how to deal sensitively with students' religious objections to evolution?

A. Yes. Probably the most important point is to be sensitive to the students, for the teacher to understand that this will be different than teaching other things in their day.

Q. If you could read the fifth declaration, please?

A. "Parental and community involvement in establishing the goals of science education and the curriculum development process should be encourage and nurtured in our democratic society. However, the professional responsibility of science teachers and curriculum specialists to provide students with qualify science education should not be compromised by censorship, pseudo science, inconsistencies, faulty scholarship, or unconstitutional mandates."

Q. So this talks about the importance of supporting the professionals, the science teachers within the school district?

A. Yes.

Q. And if you can read the last declaration, please?

A. "Science textbooks shall emphasize evolution as a unifying concept. Publishers should not be required or volunteered to include disclaimers in textbooks that distort or misrepresent the methodology of science and the current body of knowledge concerning the nature and study of evolution."

Q. Do you agree with that, Dr. Alters?

A. Yes.

Q. I'd like to highlight one other passage in this NST A statement. Matt, could you go to the legal issues highlight in the fourth paragraph? Dr. Alters, could you read into the record the highlighted passage, please?

A. Yes. "Some legislators and policy makers continue attempts to distort the teaching of evolution through mandates that would require teachers to teach evolution as only a theory or that require a textbook or a lesson on evolution to be preceded by a disclaimer. Regardless of the legal status of these mandates, they are bad educational policy. Such policies have the effect of intimidating teachers, which may result in de-emphasis or omission of evolution. As a consequence, the public will only be further confused about the nature of scientific theories. Furthermore, if students learn less about evolution, scientific literacy itself will suffer."

Q. So this says regardless of the legality of saying that evolution is only a theory, it's bad pedagogy?

A. Yes.

Q. You testified that the largest association of biology teachers is the National Association of Biology Teachers, NABT for short?

A. Yes.

Q. Do you know whether they've taken a statement on the teaching of evolution?

A. Yes.

Q. Matt, could you put up Exhibit 186, please? Dr. Alters, do you recognize what's been marked as Plaintiff's Exhibit 186?

A. Yes. It's the NABT statement on the teaching of evolution.

Q. And do you know when it was most recently updated?

A. I think it's right on there, 2004, May.

Q. And Matt, could you highlight -- Dr. Alters, if you can read from the NABT statement on the teaching of evolution, please?

A. "Scientists have firmly established evolution as an important natural process. Experimentations, logical analysis, and evidence based revisions are procedures that clearly differentiate and separate science from other ways of knowing. Explanations or ways of knowing that invoke non-naturalistic or supernatural events or beings, whether called creation science, scientific creationism, intelligent design theory, young earth theory, or similar designations, are outside the realm of science and not part of a valid science curriculum. The selection of topics covered in a biology curriculum should accurately reflect the principles of biological science. Teaching biology in an effective and scientifically honest manner requires that evolution be taught in a standards based instructional framework with effective classroom discussions and laboratory experiences."

Q. Do you find anything in this statement or anything else in the NABT statement that would support the teaching of intelligent design as science?

A. No, to the contrary.

Q. I'd like to direct your attention to one more teaching organization. Do you know whether the American Association of University Professors has recently taken a position on intelligent design?

A. Yes, they have. June.

Q. And that organization is known by the acronym AAUP?

A. Yes.

Q. Is that an organization of science teachers?

A. It's an organization with 45,000 members in the United States of instructors at the college and university level.

Q. But it includes more than just science professors?

A. Yes.

Q. Matt, could you put up Plaintiff's Exhibit 700, please? Do you recognize what's been marked as Plaintiff's Exhibit 700?

A. Yes.

Q. Matt, if you could highlight -- Dr. Alters, if you could read from the AAUP position statement?

A. "The theory of evolution is all but universally accepted in the community of scholars, and has contributed immeasurably to our understanding of the natura world. The 91st annual meeting of the American Association of Universities Professors deplores efforts in local communities and by some state legislatures to require teachers in public schools to treat evolution as merely a hypothesis or speculation, untested and unsubstantiated by the methods of science, and to require them to make students aware of an intelligent design hypothesis to account for the origins of life. These initiatives not only violate the academic freedom of public school teachers, but can deny students an understanding of the overwhelming scientific consensus regarding evolution."

Q. Are you aware of any science education associations that have taken a position supporting the teaching of intelligent design in science class?

A. No.

Q. Do these science education associations hold meetings and conferences?

A. Sure. National, regional, some even smaller than that.

Q. How often do these conferences take place?

A. Well, the nationals are usually annually, and regionals generally annually, and the smaller groups sometimes multiple times throughout the year.

Q. And I believe you testified that you've attended lots of these conferences, both national and regional?

A. Yes.

Q. Are you aware of any conferences, any science education conferences that promote teaching that the occurrence of evolution is not scientifically established?

A. No.

Q. Are you aware of any science education conferences where they teach that intelligent design should be taught in science education class?

A. No.

Q. Are you aware of any teacher conferences, not science teacher conferences, where they support the teaching of intelligent design?

A. Yes.

Q. And what organization would that be?

A. Association of Christian Schools International.

Q. They support the teaching of intelligent design in science?

A. Well, they have sessions on it, yes.

Q. I want to focus now on the Pennsylvania science standards. Matt, if you could put up Plaintiff's Exhibit 210, please? Do you recognize this, Dr. Alters?

A. Yes.

Q. And what is it?

A. It's the academic standards for science and technology and environment and ecology.

Q. Matt, if you could put up the introduction, the introductory page? And if you can highlight the first passage? And could you read that statement, please?

A. "These standards describe what students should know and be able to do by the end of 4th, 7th, 10th, and 12th grade. In addition, these standards reflect the increasing complexity and sophistication that students are expected to achieve as they progress through school."

Q. These are standards put out by the Pennsylvania Department of Education?

A. Yes.

Q. And are these similar to the standards found in other states?

A. More or less. They're never identical, but --

Q. Matt, if you could go to page 4, and if you can highlight the first passage, "What is science?" This is the page entitled "Academic standards for science and technology." And Dr. Alters, if you could read the highlighted passage, please?

A. "What is science? Any study of science includes the search for understanding the natural world and facts, principles, theories, and laws that have been verified by the scientific community, and are used to explain and predict natural phenomena and events."

Q. And what is significant about this passage?

A. Well, it's defining science for the rest of the standards right at the beginning. It's saying this is what science is, and then the rest of the science standards follow.

Q. And what about words highlighted in yellow?

A. That's crucial, because teachers cannot bring in something that hasn't been verified by the scientific community and teach it as a fundamental area of science to the students. It's saying no, that wouldn't be considered science according to the Pennsylvania state standards.

Q. So under the standards it's important to teach materials that has actually been verified by the scientific community?

A. Yes.

Q. And in all of these science education associations they generally look for consensus in the scientific community --

A. Yes.

Q. -- around, I'm sorry, around particular issues?

A. Yes.

Q. And it's only those issues around which there is a consensus that are taught in --

A. That's taught, and sometimes what is taught is genuine scientific debate that's going on within the scientific community.

Q. But again that has to be a debate within the scientific community and not in culturally or among lay people?

A. Correct. The scientific community verifies that that's a legitimate scientific, it's based what's going on within their community, yes.

Q. And Matt, if you could go to the table of contents, please? And are these the topics that are covered by the Pennsylvania science standards?

A. Yes.

Q. And it includes biological sciences?

A. Yes.

Q. And it includes evolution?

A. Yes.

Q. Have you had an opportunity to review these standards?

A. Yes, I have.

Q. Is there anywhere in these standards suggested that evolution is a lesser theory than any other scientific theory?

A. No.

Q. Is there anywhere in these standards that suggests that the occurrence of evolution is debatable or controversial?

A. No.

Q. Is there any mention in the Pennsylvania science standards about intelligent design?

A. No.

Q. Now, the school district points to a particular section of the Pennsylvania science standards. Matt, if you could highlight section 3.212-A? Dr. Alters, if you could read for the record the highlighted provision, please?

A. "Critically evaluate the status of existing theories, for example germ theory of disease, wave theory of light, classification of subatomic particles, theory of evolution, epidemiology of AIDS."

Q. Does that language in any way support the teaching of intelligent design?

A. No.

Q. Does it support singling out evolution among all scientific theories for increased scrutiny?

A. Absolutely not. The items that are mentioned there, as you can see there's a few, and those are just for example listings.

Q. To your knowledge is there any support in any state or national science standards benchmarks or frameworks for teaching intelligent design as science?

A. No.

Q. Let's talk a little bit about textbooks. Are you familiar with high school biology textbooks?

A. Yes.

Q. Why is it that you're familiar with those?

A. I've probably reviewed twenty, approximately twenty over the past ten years. Occasionally they're sent to me to be reviewed. Occasionally I like to look at them myself. Occasionally I look at them and then pass them on to to-be science teachers for their use to take a look at and so forth, and I've reviewed content in a couple of. In fact, the book, Ken Miller's high school textbook, Miller and Levine, I reviewed I think it was the late 1990's edition of it. I don't remember which edition.

Q. Did you review that for a particular reason?

A. I believe it was the evolution section.

Q. Were you asked to review that by someone?

A. It was probably the publisher.

Q. And to give critical feedback?

A. Yes.

Q. Are you aware of any textbooks that promote the teaching of intelligent design?

A. Yes.

Q. High school textbooks?

A. Yes.

Q. And what is that textbook?

A. Biology: A Search for Order and Complexity, about 400 pages, it's published by Christian Liberty University Press.

Q. And do you know if that textbook is used in public schools?

A. I've never hard of it being used in a public school, no.

Q. And is that a creationist book?

A. I would call it a creationist book, yes.

Q. And you're familiar with it?

A. Yes.

Q. Are you aware of any other high school biology textbooks that teach intelligent design?

A. No. There are other ones that teach evidence against evolution. The book I just mentioned certainly does. There's another high school biology textbook that I'm thinking of right now, it's approximately 700 pages long, it's titled Biology for Christian Schools, and it's published by Bob Jones University Press.

Q. And that in fact teaches that evolution, the occurrence of evolution is not scientifically sound?

A. Correct.

Q. Are you aware of any other high school biology texts that teach evidence against evolution?

A. Not that I can think of at the moment, no.

Q. And they talk about the controversies within the scientific community over the means and mechanisms of how evolution works, but do not question the fact of evolution itself?

A. Textbooks that are commonly used in public schools often discuss problems with the mechanisms. That's genuine scientific debate within the scientific community. They don't put up some form of evidence against the occurrence of evolution, because evolution is considered factual within the scientific community for a long time. The scientists no longer genuinely debate that issue.

Q. Let's look at college textbooks. Are you familiar with college biology textbooks?

A. Yes.

Q. And why is it that you're familiar with those?

A. I wrote one. Got to keep track of the competition. And I look at evolution textbooks for the college an university level also.

Q. Are you aware of any college and university level biology textbooks that teach evidence against evolution?

A. No.

Q. Are you aware of any college and university level biology textbooks that support the teaching of intelligent design?

A. No.

Q. Do you know whether any of those textbooks even mention intelligent design?

A. Many of them do mention intelligent design, but they mention it as in a way to teach students that it's not science.

Q. And do you know whether these textbooks in fact say that intelligent design is not science?

A. Oh, yes.

Q. But you're not aware of any that would support teaching intelligent design as a scientific theory?

A. Right.

Q. Let's go to the Dover policy. Matt, if you can put up Plaintiff's Exhibit 124, please? Dr. Alters, you indicated that it was your opinion that reading this four-paragraph statement does not in fact promote good science education. Could you explain for us why not?

A. It doesn't have good science education. It detracts from it. Let me go paragraph by paragraph. First of all there's the first paragraph, all four paragraphs, but particularly the first paragraph there's something unusual in a science class. Apparently now the students are going to hear, they're going to learn that the Pennsylvania academic standards requires students to learn about Darwin's theory of evolution. My reading of the state standards is that it requires them to learn a lot more science than just Darwin's theory of evolution, but for some reason this is told to the students and the students learn this for some special reason.

Evolution must be a special science somehow I guess from this. This would be the message students would take away from it. It continues on and says eventually to take a standardized test of which evolution is part. Well, I imagine they take standardized tests on lots of areas of science, not just evolution. So it almost kind of signals to the students also, it's definitely a possibility, another aspect that we have to teach this stuff, you know. The other stuff we're just going to teach you, but now this one we have to say the Pennsylvania academic standards requires students to blah, blah, blah, and eventually take a test. We'd rather not do it, but Pennsylvania academic standards, you know, require students to do this.

And that's the first paragraph. The second paragraph, because Darwin's theory is a theory. Well, that's quite confusing. Darwin's theory is a theory. We don't say, you know, because the physics law is a law or this physics theory is a theory. Yes, Darwin's theory is a theory, but the second theory being used, especially as understood by most 15-year-old students, most high school students in fact, is that a theory is nothing more than a half baked idea they had when they got up in the morning, a theory is something that Mulder uses on the "X Files" two times an episode to mean yeah, I just got a new idea. It's used in the media all the time to meet that, and I understand that very well.

However, the first theory, if it's being used correctly here, is a scientific theory, which is quite different than the half baked idea. It has a lot of evidence behind it, an explanation of a natural phenomenon. So to juxtapose those two theories together is terrible and sends a wrong signal to the students. Oh, this scientific theory is only a theory, you know, this scientific theory is, this is one of those half baked ideas, okay?

That's the first five or six words. "It continues to be tested as new evidence is discovered." Well, all theories all of science continue to be tested, all of science continued to be tested as new evidence is discovered. So why is evolution being singled out here as this to be told to the students? This is shaky, this is I believe most students would say that's because this Darwin's theory stuff appears to be shaky. It's only a theory, and you know, they're still testing it as new evidence is discovered. Well, all of science is that way.

It continues, "This theory is not fact." Well, that's just dead wrong. Evolution is a theory and fact. It is both. It is a theory because it explains the diversity of life on the planet you understand. It's a fact because its confidence level is so extraordinarily high in the scientific community, they no longer debate it, they no longer publish papers, there's no significant body of literature in the scientific journals about saying the occurrence of evolution whether it happened or not. It's not there. It's considered factual in the scientific community, extraordinarily well accepted. So this is very inappropriate. Evolution is a factual theory. That would be an appropriate term to use that the student should be taught that, but in any case that sentence has many problems.

"Gaps in the theory exist for which there is no evidence." Well, there's not evidence against the occurrence of evolution. The mechanisms of evolution of course as I mentioned before are being debated extensively, but this really doesn't tell us whether it's the occurrence of evolution or not. It's confusing to the students. It's not specific. So it's just kind of engendered that evolution in general, you know, this theory has gaps which there's no evidence.

And notice when we get down to the next couple of paragraphs we'll notice that it's being juxtaposed with intelligent design. But when we get to intelligent design later in the couple of paragraphs, it doesn't say anything about gaps being in that idea of intelligent design. It only points out that evolution, you know, is only a theory, and it's got gaps for the theory exists for no evidence, so forth. So it's bad in that respect, too.

Q. Dr. Alters, let me just stop you there for a minute. You said evolution. I don't actually see the term "evolution" in that second paragraph. The term they use is "Darwin's theory." Do you know from your research how students would perceive that term, do they equate that with evolution?

A. They often equate Darwin with evolution, but I think first paragraph where it says Darwin's theory of evolution, and then it carries through the rest, I think they would associate it with that also.

Q. How about that last sentence in the second paragraph?

A. " A theory is defined as a well tested explanation that unifies a broad range of observations." That sounds pretty good. I might add in just for my own two cents of natural phenomena, but that sentence is probably the best one. Third paragraph, "Intelligent design is an explanation of the origin of life that differs from Darwin's view." Very confusing, and pretty much dead wrong I guess. Origin of life from Darwin's view, I don't know Darwin's view of the origin of life. Darwin didn't posit a scientific view out in public on the origin of life. He wrote a letter about a little warm pond scenario once, but I don't know what it is.

Q. That's not in his book Origin of Species?

A. No. I don't quite understand that, intelligent design is an explanation of the origin of life that differs from Darwin's view. Again it's wrong. It's basically sends a wrong signal to the students. "The reference book Of Panda and People is available for students who might be interested in gaining an understanding of what intelligent design actually involves." Pandas and People advocates intelligent design. Intelligent design has been condemned by the national scientific associations, the most prestigious, the largest, the largest science teachers organizations, the largest science teacher biology organization, on and on and on, and now we're referring students to go seek it out as a supplemental book to take a look at in a science class when its central theme of intelligent design has been judged to be not science.

So I have a lot of problems with that. Let's move on to the last paragraph, "With respect to any theory, students are encouraged to keep an open mind." Why are we putting this only with evolution? Well, I agree with the sentence, but why is it being juxtaposed only with evolution? And of course students are always encouraged to keep an open mind. It's very strange. "The school leaves the discussion of the origins of life to individual students and their families." Well, kind of interesting, the origin of life in a science class, in a biology class is science, and it almost sounds like the scientists and the science teachers can't be trusted to talk to students about the science of the origins of life.

"As a standards driven district, class instruction focuses upon preparing students to achieve proficiency on standards based assessment." The last sentence again, doesn't that go for all of science at the school? And why is it being juxtaposed to evolution here? Again it makes it sound like we have to do this. We really don't want to teach you evolution, but as a standards driven district class instruction focuses on preparing students to achieve proficiency on standards based assessment, and since evolution is going to been on there, we have to teach this to you. Those are some of the problems I have with those four paragraphs.

Q. And so in your view does this statement engender misconceptions in students about science education and science generally?

A. Definitely.

Q. Does this statement help prepare students for post secondary science education at major colleges and universities?

A. To the contrary. If one would go to any college that teaches biology and evolution and brings up some of the things that are said in here, they would have to be corrected by the later university professor. I mean, I imagine at some point especially since intelligent design is mentioned in here, you know, bringing up supernatural causation in the middle of a science class in the university or a college biology, any science professor would probably, especially biology professors would ask where they learned their science, what school did they go to.

Q. Could that be embarrassing to the students?

A. I assume it could be quite embarrassing, yes.

Q. So does reading this statement to students constitute good pedagogy?

A. No. To the contrary it engenders misconceptions. This is exactly what we shouldn't be doing to students for multiple reasons, some of which I mentioned.

Q. Does reading the statement require the readers to disregard findings of the scientific community?

A. Could you repeat the question?

Q. As you know, the teachers have refused to read this statement to the students.

A. That's what I understand.

Q. And in fact administrators come into the class and read the statement. I believe in your report, your expert report you talked about whether science teachers reading this would be required to disregard findings of the scientific community. Since the teachers aren't reading it, I'm asking you whoever is reading this, the administrator or teacher, does it require them to disregard findings of the scientific community?

A. Yes. It's putting forth that this is an alternate scientific explanation, and it is not. So one would have to ignore the leading organizations in the United States, if not the world.

Q. And similarly it requires the reader to disregard the recommendations of the national professional science teacher associations?

A. Yes.

Q. And would this require teachers, if they were reading it, to contradict their professional preparation and professional development?

A. Yes. Their professional development as accurate science is part of it, to teach students accurate, not to engender needless misconceptions about science.

Q. And is there a code of professional ethics among the science educators?

A. I don't know if there's so much a code, but I can't think of anything worse for science education than to intentionally engender needless misconceptions.

Q. The district claims that simply reading this four paragraph statement to students is not "teaching" intelligent design. Do you agree with that?

A. No, it's definitely teaching.

Q. Why is that?

A. Teaching is the act of facilitating learning. Students have learned a whole lot from these four paragraphs. It's a mini lecture. Doesn't last long. I'm not saying it's good teaching, but it's teaching.

A lot of us have been through our lives and have heard a lot of lectures, and what students could have learned from this, I'll quickly just go through a few. First of all they learn that Darwin's theory is only a theory and it continues to be tested.

A theory is not fact. These by the way, many of them are misconceptions as I mentioned. That gaps exist in this theory. This is something by the way that they're just about, my understanding is this statement is read before they begin the evolution unit. So they're just about to enter the cornerstone of modern biology in their high school class, and this is read. All these misconceptions about it are learned by the student, or at least read to the student and these students can learn these things right before it begins.

But to get back to this, they're learning that a theory is not a fact. They learn that what you're about to learn on evolution, there's gaps in this theory and which there's no evidence. They learn that, I like that last sentence in the second paragraph. They learn about this other thing they probably never heard about, at least most of the students probably have never heard about, something called intelligent design, and they learn that it's an explanation for the origin of life that somehow differs from this Darwin's view that they're about to learn about if they haven't already learned about it.

They learn that there's this reference book, apparently some science reference book located somewhere the school has entitled Of Pandas and People, and it's available and you may want to go seek this out if you want to gain an understanding of what intelligent design involves. They've learned that. The fourth paragraph, they're learning that they're encouraged to keep an open mind, but apparently they're only encouraged during this time. We're about to begin evolution, so now keep a special open mind now.

The school leaves the discussion of the origins of life to individual students and their families, again as I mentioned previously this signals to students they might learn that oh, that's a special science. That's something, that's science that has to be discussed with parents and not the science teacher. And then of course the final one as I discussed before, they might be reinforced in learning again the other, very beginning, that somehow it seems like what we're about to learn they really don't want to teach us, but you know, they have to do it anyway.

Those are some of the things that the students can learn from learning this four paragraphs. I'm not saying all students will learn all of that, but it's certainly a possibility and there's certainly lots of students who will learn a lot of these, and I'm very concerned about the misconceptions that are engendered about this also. And yes, it's a form of teaching. Students will learn, somebody is reading to them, it is a lecture, it's in the Dover curriculum, it says lecture. This is a lecture.

Q. So the fact that it's not part of an extended discussion doesn't mean that it's not teaching?

A. It is teaching.

Q. And it facilitates learning by students?

A. Yes. It's not -- if students aren't learning things in this four paragraphs, then it begs the question obviously why is it being read to the student.

Q. Now, what if any effect does the possibility for students being able to opt out or leave the room when this statement is read have on your opinion about this engenders misconceptions?

A. Now comes another special thing about evolution. There's an opt out policy before the special statement that's read before the unit in evolution, the special science apparently, and now this is such an unusual occurrence that they can even opt out. Peer pressure may affect students to stay in or opt out. Students may talk at breaks, they may talk at lunch, they may talk at recess, they may talk after school about what happened when I was outside of the classroom. My parents wanted me to opt out during this time, but what happened in there, it's something special.

Q. So if anything this highlights the unusualness of the teaching of evolution?

A. It's unique. One of the things we try to do in science education is make our different teaching unique. It draws more attention to the student. The student pays more attention to something that's unique and not the norm. And this is certainly unusual, this reading of this paragraph and everything connected with it, the opt out and so forth. So this will probably draw more attention to it than the teacher just doing whatever they normally do in the classroom.

Q. And how does the fact that the teachers are excused from the room and an administrator, and I believe it's been either the superintendent or the assistant superintendent, have come in and read the statement?

A. Well, it just adds more novelty to it, makes it more unusual. Now we have a guest. Apparently an administrator comes in, the teacher exits the classroom during this time my understanding is. This creates an extreme novelty in the classroom, and all before an evolution unit.

Q. So again it sort of heightens the specialness of evolution and dramatizes the promotion of intelligent design?

A. It's an incredible introduction to the next unit in science, yes.

Q. Now, Matt, if you can put up the entire document marked as Plaintiff's Exhibit 124? And if you could go to the second page? And if you could highlight paragraph 5? This is towards the end of the statement read to the students. Could you read for the record the highlighted passage, please?

A. "As noted in the last paragraph of the statement, there will be no other discussion of the issue, and your teachers will not answer any questions on this issue. If you or your parents have any questions, they can contact Dr. Nilsen, Mr. Baksa, or Mr. Reidel."

Q. What effect do you think that's going to have on the student?

A. That it's a secret science, that somehow this science is secret. They can't ask their science teacher about this particular science. Everything else that goes on in the science class during the year in normal science classrooms they can ask the teacher could you elaborate on this, could you tell me more about this, could you tell me is it good, bad, explain to me, I don't quite understand this aspect.

But apparently this is a secret science that they can only discuss it, they can only hear about the introduction of it, they can only be referred to this book about this secret science located somewhere on campus, and they can't ask their science teachers questions about this science. It's extraordinarily strange. Science if anything is extraordinarily open, and here we have this secret science that students apparently can't discuss with their science teacher.

Q. So is it, is this pedagogically appropriate?

A. It's about as bad as I could possibly think of.

Q. To raise an issue with students and then tell them they can't discuss it?

A. It's just, it's absurd to me that you would bring up a topic, say it counters the cornerstone of modern biology that you're about to be introduced to, here's a secret science, there's a book located somewhere else, go read the book, don't ask your science teachers any questions about this, and then tell the science teachers they're not to answer any questions about this secret science. I can't imagine anything worse.

Q. The school district has made a number of arguments in support of what they're doing here, this intelligent design policy, and one of them is that it is appropriate to raise in students multiple ways of knowing. What's your reaction to that?

A. Well, the multiple ways of knowing that would be raised are scientific ways of knowing versus non-scientific ways of knowing. This would be improper in a science classroom. The science teacher is trained in science. The science teacher is not trained in say religion. Science teachers aren't trained at the university on how to teach religion for example. They're trained on how to teach science, not non-science. So having multiple ways of knowing in a science classroom is not appropriate.

Q. Another argument that the school district makes is that this simply promotes critical thinking. What's your reaction to that argument?

A. Promotes critical -- it stifles critical thinking if anything. Again we go back to the secret science. You can't even have a critical discussion with your science teacher about it. It's something that shuts down any form of critical discussion whatsoever, and it's not science anyway. We shouldn't be critically analyzing this non-science in a science class. But anyway, it shuts down critical thinking in science because it's a secret, teachers can't discuss it.

Q. And does it promote critical thinking about evolution?

A. No. The paragraphs we read engenders misconceptions, and it would pit a non-scientific concept against a scientific concept. That wouldn't be proper for a science classroom.

Q. And it also teaches that evolution is not a well established scientific theory?

A. Correct.

Q. So regardless of whether this promotes critical thinking, I mean ultimately it engenders misconceptions?

A. It engenders misconceptions not only about evolution, but about the entire process of science, about the nature of science if you will.

Q. And critical thinking in and of itself is not the goal. Critical thinking in terms of education, science education, is to promote proper understanding of subject matter?

A. Yes. No, critical thinking is not the end goal. Let's take it back to mathematics for a moment. You want the child to critically analyze two plus two equals four. But in the end if they think that two plus two equals five, and they think they have good mathematical reasons for thinking two plus two equals five, then it's up to instructor to disabuse those misconceptions from the student. So in the end the student says oh, for good mathematical reasons two plus two does equal four, even though for non-scientific reasons I still think it equals five.

Q. Another argument that the district has raised is that this simply encourages students to assume more responsibility in their learning and to play a more active part in constructing their own knowledge. What's your reaction to that?

A. No, it engenders misconceptions again. It sends them off to find a book whose central thesis has been condemned again by the scientific associations and scientific education societies. No, it doesn't do anything such as that.

Q. Two more arguments that the school district has raised, they say that this policy simply promotes a fuller understanding of the theory of evolution, including its limitations. Why doesn't this policy do that?

A. No, it confuses the issue with the occurrence of evolution, again engenders many misconceptions, but here's another one that somehow evolution, the occurrence of evolution is being debated in the scientific community, that it's an ongoing rigorous debate within the scientific community, and that's just dead wrong.

Q. So teaching students that there's a controversy over evolution would not be appropriate or good pedagogy either?

A. No. Teaching students of course that they're still having, oh, we don't have all the answers in the process of evolution and the mechanisms of evolution is correct, but as far as the occurrence of evolution being still debated in the scientific community, no.

Q. And one last argument is why isn't this permitted under the concept of academic freedom?

A. I don't know a science teacher who would want to teach non-science in the science class. Academic freedom is not supposed to have science teachers teaching music in the class. Nothing against music, I love music, but that's not what the academic freedom is about, to teach things that aren't in the curriculum, completely outside the subject area in there is not that teacher's job. They're science teachers. They should be teaching science.

Q. And is there any definition of academic freedom that would promote teaching students misconceptions?

A. No.

Q. I want to focus a little bit on the book Of Pandas and People. Are you familiar with that book?

A. Yes.

Q. Do you know whether any science education organizations have suggested criteria for evaluating science textbooks?

A. Yes. The National Science Teachers Association, again the largest in the country if not the world, says that, or they say many things, but part of it is they suggest to adoption boards and so forth that they use accurate science as a criteria for the book.

Q. And does Pandas meet that criterion?

A. My understanding from scientists who have reviewed it, it does not. Its central theory that I have looked at, intelligent design, has been condemned by the scientific community. It breaks one of the ground rules of science, this intervention of some supernatural causation into it. The book is 1993 publication date. Most textbooks have a three to five year revision cycle. It's a very old book also.

Q. And have you selected a passage out of Pandas as an example of why this is bad science textbook?

A. Yes, page 99/100.

Q. Could you highlight that please, Matt? And could you first read into the record the passage and then comment on it?

A. "Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinct features already intact, fish with fins and scales, birds with feathers, beaks, and wings, etc."

Q. And start with the first sentence there, why does that make it a bad science textbook?

A. Right here it says that natural cause, that intelligent design gives an answer other than natural cause. It says intelligent design, because it does not give a natural cause explanation. Well, science is all about natural cause explanation. That's a ground rule of modern science. And so right here we have a problem concerning evolution and we have a problem concerning the nature of science.

Q. How about the second sentence?

A. We have something that isn't in any college textbook here, whether biology or evolution, and no secularly published biology high school textbook, we have something here that isn't in any scientific journals, something that is just, it itself is considered a misconception. On an exam for a students did fish appear abruptly with fins and scales intact, birds with feathers beaks and wings intact, true or false. False. But yet this engenders it as true, as another possibility within the scientific realm, and paleontologists as well as all evolutionary biologists as well as virtually all biologists will say no, that's wrong. But in any case, this is considered a misconception by the scientific community. I don't know why we would send students to read this as if it were accurate science.

Q. And have you had an opportunity to review the guide to teachers?

A. There is a note to teachers in the back of the book, and yes, I have taken a look at it.

Q. Are these notes to teacher, are they a standard part of most science textbooks?

A. Some yes, some no. Sometimes it's a separate little pamphlet or something to teachers, but this one is quite extensive. It's nine pages.

Q. And generally what's the purpose of the note, of a note to teachers?

A. Something that teachers might want to pay attention to, they might want to, a new way of possibly teaching a particular subject in there. It's mainly a note from the authors to the teacher informing them of something that the authors feel is important in general.

Q. And is that what in fact the authors of Of Pandas have done with their note to teachers there?

A. I don't know necessarily what their intent was, but there are words to the teachers in the back.

Q. And have you identified some passages in the note to teachers that you found problematic?

A. Yes, I have.

Q. Matt, could you highlight the first passage, please? This is on page 153. If you could read the passage and then comment on it, please?

A. Just as an aside, I notice that in this notes to teachers it's by apparently different authors, but the passage reads, "Controversy is not all bad. However, it gives teachers the opportunity to engage their students at a deeper level. Instead of filling young minds with discrete facts and vocabulary lists, teachers can show their students the rough and tumble of genuine scientific debate."

Q. What's wrong with that?

A. Well, genuine scientific debate, showing them intelligent design is not genuine scientific debate. It's not going on in the scientific community. There's no -- it's misrepresenting what's currently going on in the scientific community.

Q. And who are the authors of this note to teachers?

A. Sorry, too small. I can't read it. Looks like Hartwig and Meyer, Mark Hartwig and Steven Meyer.

Q. Do you know who these individuals are?

A. I've read some things by Meyer. The other individual no. I've heard the name. I don't know if I've read anything.

Q. Could you highlight the second passage please, Matt? And this is on page 154 of Of Pandas and People, which I believe is Plaintiff's Exhibit 11. Could you read the highlighted passage and then comment on it, please?

A. "The purpose of this text is to expose your students to the captivating and the controversial in the origins debate, to take them beyond the past scenarios offered in most basal texts, encourage them to grapple with ideas in a scientific manner. Pandas does this in two ways. First, it offers a clear, cogent discussion of the latest data relevant to biological origins. In the process it rectifies many serious errors found in several basal biology texts."

Q. Let's start with the first paragraph. What's wrong with that?

A. First thing, it engenders a misconception again that this is controversial in the scientific community, that somehow this is controversial. It's not. So that's the first misconception, and the second one that's highlighted in yellow there is "grapple with ideas in a scientific manner." If anything this is engendering students how to grapple with ideas in an unscientific manner. This is not the way science operates. Again supernatural causation is one of the main issues concerning this major problem, and it does the exact opposite.

I wonder whether some teachers read this, certainly maybe not the teachers in Dover, but just in general maybe some teachers might read this and think oh, what am I missing that is controversial in the scientific community, I didn't know this, I'm going to go spend some time looking for this. Hey, to grapple with ideas in a scientific manner, that sounds like a good thing to do and so forth. I imagine most science teachers though who had a science background and had their science methods courses in universities will know better, but some may not. There might be some that may not, and they may send tracking this stuff down, only to learn that's what's in this text note to them is just wrong.

Q. And how about the next paragraph?

A. Latest date irrelevant, I mentioned this previously, the book is 1993. That's not considered an up to date biology book.

Q. And is there a normal cycle that's used --

A. Generally three to five years for revision.

Q. And that sounds like a short period of time to change biology textbooks every three years.

A. Yeah, biology moves quickly.

Q. And is that the same cycle that other sciences are on?

A. It depends on the science. Physics, it depends on the science. Too many to discuss.

Q. And Matt, could you put up the next passage that Dr. Alters has highlighted? And if you could read this passage and comment on it?

A. "Second, Pandas offers a different interpretation of current biological evidence as opposed to most textbooks, which present the more or less orthodox neo-Darwinian accounts of how life originated and diversified. Pandas also presents a clear alternative which the authors call intelligent design throughout. The text evaluates how well different views can accommodate anomalous data within their respective interpretive frameworks. Pandas also makes the task of organizing your lessons and researching the scientific issues much easier. Pandas provides the scientific information you need and provides it in a way that coordinates well with your basal text."

Q. What's wrong with this passage?

A. Presenting a clear non-scientific alternative to the students. This is within the context of a science course. This statement was read to students in a science course to go seek out this text concerning an alternative scientific view, intelligent design, and here it says to the teachers that this book presents a clear alternative. Science teachers, if they're not up on this, may think oh, what am I missing here, there's an alternative to evolution here, what is it to the occurrence of evolution, and may seek spend time seeking out the answer to that, or may just say well, intelligent design, and they've learned something themselves. I'm concerned about the effect on students and I'm also concerned about the effect on some teachers.

Q. And the one last provision that you've highlighted, this also is from page 154?

A. "As students learn to weigh and sort competing views and become active participants in the clash of ideas, you may be surprised at the level of motivation and achievement displayed by your students." Yes, I think this might be quite accurate that their level of motivation, and I don't know about achievement, but motivation may go up. But it's all for the wrong reasons. Now many students are going to be recognizing an intelligent designer as being very God friendly, very religious friendly for them.

In interviewing like I said over a thousand students this is something that automatically comes up with a lot of students, and now they have this motivation. They've never before in their science classes the teachers would always say that's a religious question, that's outside the game of science, the rules of science. That's outside. So go speak to your parents or your religious leader or something like that.

Now all of a sudden we've told the students to seek out this book, the alternate view, and this alternate view to the perception of a student, and my perception, too, is very God friendly. It talks about an intelligent designer. Evolution doesn't ask or answer any of those questions. There may be, there may not be. It doesn't matter, because they only look at natural causes in evolution.

Now we've got those two competing in possibly the minds of the student, the God friendly and the one that doesn't mention God at all, and now those two are going to, of course your motivation is going to go up. The student may feel they're defending their faith now in a science classroom.

Q. Let's wrap up here and ask you a couple of questions. How does introducing intelligent design to students affect them in terms of learning science?

A. Engenders great misconceptions about fundamental issues in science, the ground rules as I have stated. It engenders misconceptions about evolution itself, that somehow there's this controversy going on, that somehow evolution is a special theory, it's somehow less than other scientific theories. It's not as good, it's only a theory. It engenders numerous misconceptions.

Q. And will that serve them well as they move on through life?

A. The exact opposite. This is not what science teachers should be doing.

Q. How does introducing intelligent design to students affect them in terms of religion? Does it bring religion into the classroom?

A. This is probably my biggest concern out of all of it is this is a very emotionally charged issue for a lot of young people, and older people also, and now -- the science class was a, is a safe place for students for their religious beliefs. All religious beliefs should be respected in the school in general. Of course in the science classroom also.

We don't deal with ultimate causes here in the science classroom. We don't deal with if there's a supernatural force behind it all. We don't deal with those questions. Whether there's supernatural interventions between all different types of mechanisms in science, we don't deal with that in here, the who or the how of the supernatural. We don't do that. So it's sort of a neutral place. It's hard enough with students bringing in all sorts of misconceptions about evolution in general and misconceptions perceived about their religious faith, bringing it into the science classroom and hearing about evolution, that's tough enough. That's tough enough for most students.

Now what this policy is doing is saying there's this other scientific view that belongs, it belongs in the game of science, and it's the one that most students will perceive as God friendly. It has as intelligent designer, evolution doesn't. Now students are going to be in there discussing out in the playground, discussing in their class among themselves or whatever that the unit that they're now about to hear about, the evolution unit that's now coming up, is the one that's not God friendly.

It's that one scientific theory that doesn't mention God. But this other so-called scientific theory, intelligent design, is God friendly, because there's a possibility that God has this other theory. What a terrible thing to do to kids. I meant to make them have to think about defending their religion before learning a scientific concept. How ridiculous. This is probably the worst thing I've ever heard of in science education.

MR. WALCZAK: I have no further questions.

THE COURT: One moment. All right, we'll pick up the cross examination this afternoon, but before we recess I'd like to talk about the deposition designations and the counterdesignation. Besides what we have from you on the deposition designations and the counters, have you reached any agreement in particular as to the counterdesignations sought by the defendants to your designations?

MR. ROTHSCHILD: There's been quite a bit of exchange between both parties, and I've -- there's been changes to designations which require changes to counterdesignations.

THE COURT: I don't need to know them in specific, but other than what I have -- let me ask it this way. How close are we to where you're going to be introducing what you've designated?

MR. ROTHSCHILD: I think we're going to have a pretty full day today, so I don't think there will be a need for it, but there may be occasions to do it on Friday, and I would say on average with each witness that there's designations there's probably four to five passages, different lengths, where there are objections, really I think all objections, or almost all objections on behalf of the plaintiff, and what I think makes the most sense, and I think it was something you suggested before is we start reading them into the record, and where we hit a passage, you know, we'll read the designations, we'll read the counterdesignations. When we hit a passage where there's an objection to ask you to rule on it in sequence. I think that's the easiest way for you to --

THE COURT: And the likely objection would be to the counterdesignation?


THE COURT: As far as I can see from what you have submitted.

MR. GILLEN: I agree with that, Your Honor. I think essentially what you have in front of you now seems to be the designations as they are now with the objections, and then in an effort to facilitate that process as Mr. Rothschild has referenced, I gave you our sense of why the counterdesignations are proper, it seems like at this point --

THE COURT: I can let you continue your work or attempts to work through it then, and we don't have to break in order to have me rule based on what we discussed, and I do recall that discussion, and as the counterdesignation comes up, as proposed by the defendants you'll interpose your objection if you haven't otherwise resolved it, and then I'll just rule on it as we get to that point. Is that satisfactory to everybody?

MR. GILLEN: If that's fine with you, that's fine with me.

THE COURT: It is with me, and I think it will keep it moving. I will tell you that if it aids your work that I would intend to be fairly liberal in allowing the defendant's suggested counterdesignation to come in. You should be guided by that inasmuch as this is a bench trial. I think the purpose of the rule and why we work hard at these in particular, when we work hard at these in particular, would be the occasion of a jury trial when you have to be extremely precise. I don't think that we have the same level of precision as mandated here inasmuch, and I think you'll agree with this, as this is a bench trial.

So you ought not over play, you're getting what I'm telling you, obviously you're nodding, but don't over play an objection to a counterdesignation unless it's something that you feel very, very strongly about, and then of course a well placed objection will trigger an appropriate ruling. All right? We will recess then until 1:35 this afternoon. We'll reconvene with the cross examination of this witness at that time. Thank you.

(Morning session concluded at 12:05 p.m.)

(End of Volume 1.)


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