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Kitzmiller v. Dover Area School District

Trial transcript: Day 9 (October 14), AM Session, Part 1


THE COURT: Good morning to all. We are at the point of cross-examination, or are we still on direct?

MR. HARVEY: Yes, Your Honor, we just have some more direct.

THE COURT: I apologize. I thought we had finished him.

MR. HARVEY: No need.



Q. Good morning, Mr. Stough. Do you have in front of you the exhibit that's been marked as P671? You can take that binder and put that to the side, that one. Please open up P671. This exhibit consists of a chart and a series of letters to the editor behind it. Isn't that right?

A. That's correct.

Q. And these are letters to the editor from the York Daily Record?

A. That's correct, for the period June, 2004, through to September, 2005.

Q. And I want to focus on those letters to the editor for just a minute, and we'll talk about the chart after we talk about the letters. How many letters to the editor are there in this P671?

A. For the York Daily Record, there are 139 letters to the editor.

Q. And, I mean, what do these letters to the editor relate to, what subject matter?

A. These letters relate to the controversy in Dover.

Q. And when you say "the controversy," can you tell me what you mean by "the controversy"?

A. What I would mean is they deal with the biology textbook adoption, they deal with the appearance of the reference book Pandas and People, and they deal with the final adoption of the biology -- or revision of the biology curriculum of October 18th.

Q. And so they are letters to the editor that address any of those subjects. Do I understand you correctly?

A. Yes, yes.

Q. And are these, all of the letters to the editor, on those subjects between the period June, 2004, and September, 2005?

A. I think it's very difficult to say that it's all -- yes, it's all of them.

Q. Now, how do you know that it's -- or how do you believe that it's all of them?

A. Well, originally I read these letters contemporaneously with their publishing. However, Hedya Aryani of Pepper Hamilton assisted me and she did a sweep of -- a search of all of the articles and then did a second sweep to make sure that we had all of the articles.

Q. If you would just go to your other notebook which I promised you wouldn't have to look through, but now I'm going back on my word. And in there there's a document that's been marked as P670.

MR. HARVEY: Your Honor, just so you know, this P670 is an affidavit that the witness is about to explain. It's from one of our legal assistants. And the other side has indicated they have no objection to this affidavit, the use of this affidavit as opposed to calling our legal assistant to the stand.

THE COURT: All right.

MR. GILLEN: If I may, Your Honor, I have no objection to the affidavit and, for that reason, I believe it's rather pointless for the witness to explain the affidavit of another person.

THE COURT: So this is an affidavit, for the record, P670, which indicates -- and this is a paralegal employed, Mr. Harvey, by your firm indicating that this paralegal collected the letters after a search utilizing different search engines. If you would scroll down, please. And, in addition, collected editorials from the subject newspapers and that the trial exhibits, as listed on the affidavit, are all of the editorials and the letters found from the York Daily Record and the York Dispatch during the enumerated periods. Fair statement?

MR. HARVEY: That is exactly correct, Your Honor. And the purpose in putting that affidavit in is, the witness wasn't the one who actually went through and used the computer search engines to make sure that we had all of the exhibits, he relied on assistance from our legal assistant to do that actual function. So the affidavit is just intended to attest to that fact.

THE COURT: Then I would agree with Mr. Gillen that the affidavit speaks for itself as an exhibit and as summarized by the Court, and there would be no need then -- the import, I guess, of Mr. Gillen's comments is there's no need for you to further examine the witness on that point.

MR. GILLEN: Correct.

MR. HARVEY: Perfectly acceptable. We just did everything I intended to accomplish.

MR. GILLEN: Correct, Your Honor. He has no personal knowledge of what she did. She's attested to it. I told Mr. Harvey that I'm willing to accept that.

THE COURT: All right. Well, then having established that, let's move to the next area.


Q. Okay, Mr. Stough, so we've just established, I believe, that all of these letters to the editor were between the time period, and we believe that they're all of the letters to the editor that relate to the subjects that you mentioned.

Now I'd like to talk to you about the chart that's on top of Exhibit P671. Can you tell us what this chart is?

A. This is a chart that basically summarizes and answers some questions that I generated regarding these articles.

Q. Did you create the chart?

A. I -- the chart was my responsibility; however, I was helped by Pepper Hamilton in terms of its format and typing.

Q. So, in other words, you are responsible for the correctness of the information in the chart, but you didn't actually create the chart?

A. Yes.

MR. GILLEN: Your Honor, just for the record, to make sure -- this is a little twist on the hearsay objection and the personal knowledge objection I made at the outset of his testimony. I want to make it clear that although the chart reflects his reactions, I object to that evidence based on the underlying hearsay.

THE COURT: You're objecting to the underlying evidence being the articles or the -- I should say the editorials or the letters that he viewed?

MR. GILLEN: That's correct, Your Honor. As I've tried to state -- and I don't want to belabor it or hold up the examination -- my view is that Mr. Stough, if I'm saying it correctly, thank you, has no personal knowledge. He's offering a state of mind based on hearsay evidence. That state of mind is not admissible. That's my point. And this chart seems to be the way --

THE COURT: The state of mind is admissible.

MR. GILLEN: Well, it's admissible to show a state of mind but not to prove the facts that produced the state of mind.

THE COURT: I don't think it's being offered for that purpose.

MR. HARVEY: You are correct, Your Honor.

MR. GILLEN: Okay. Then I'm uncertain as to what purpose, but so long as --

THE COURT: Well, we've been -- and I understand you're preserving your objection, and certainly I'll grant you that, but we've been down this road. You believe that testimony of this nature on the effect prong necessarily implicates the truth of the matter asserted.

I'm not at all certain that it does. I'll grant you that you may have an argument that you may want to reserve at the conclusion of the case. I'm going to take the testimony on the effect prong based upon, in this case, this witness's examination or review, contemporaneous review, it would appear to me, of the letters and the editorials.

I understand your objection is that he's referring to something which colorably is hearsay if it's utilized for the truth of the matter asserted. I don't see that that's what they're doing, but go ahead.

MR. GILLEN: I understand. And that is my purpose right now, is to make clear that his state of mind is also like the underlying hearsay, not admissible to prove the fact that he's basing his state of mind on.

THE COURT: I'm not sure that I understand that.

MR. GILLEN: Let me try and be more precise, because it is difficult. We've gone around it. If you'd like to reserve discussion of that until after Mr. Harvey is done, I'll do that, or I'll give you more information now.

THE COURT: Are you going to cite to a case?

MR. GILLEN: Not a case, the rule, Your Honor.

THE COURT: Go ahead.

MR. GILLEN: Okay. The state of mind exception to hearsay is found in Federal Rule of Evidence 803(3), and it does provide a limited exception for state of mind, a statement of the declarant's then existing state of mind, and it provides for admissibility.

But it specifically provides "but not including a statement of memory or belief to prove the fact remembered or believed, unless it relates to the execution, revocation, identification, or terms of declarant's will."

So what I'm getting at is, his state of mind is not admissible to prove the facts, any facts, that support that state of mind, including the effect of the newspaper article.

MR. HARVEY: Your Honor, hearsay is a statement offered -- out-of-court statement of the declarant offered to prove the truth of the matter asserted. We are not offering these letters to the editor and the other letters to the editor and editorials that I'm going to discuss in just a few minutes for the truth of the matter asserted.

We are offering them, as you have correctly perceived, on the effects test. So they're not hearsay at all. They, I believe, would also be, even if they were hearsay, they'd be admissible as to this witness's state of mind, but we don't need to go down that road.

THE COURT: See, the problem that I think we're having here is that on the effects test -- and I'll say this to Mr. Gillen -- you make the assumption in citing me to 803 that necessarily, on the effects test, the truth has to be established. I don't think it does. I think it's a subjective test, and it's how he receives it.

I don't have to find, on the effects prong, necessarily, that the matters that were written about in the letters -- and, indeed, you know, they're opinion letters and they're editorials in this case -- that they have to be established on the effects prong.

So you take it, I think, a step too far. You're arguing, I think, in effect, that they're getting back-door hearsay in, but I don't think that's the case. For the effects prong -- I firmly believe that it's his subjective impression which fits, I think, squarely within 803, and I think he can testify under 803.

I recognize that, for example, for the purpose prong, it could be back-door hearsay if I utilize that to establish a fact on the purpose prong. But I don't think the effect prong militates or the analysis of the effect prong, as I've seen in the various cases, that analysis doesn't militate in favor of the interpretation that you're putting forth.

MR. GILLEN: You've said, Your Honor -- and I don't mean to belabor the point -- that you're turning in that direction. I know we're going to have a ruling here at some part. And as we approach that, you know, I'd like to have maybe a sidebar and discuss how we could best approach that from the standpoint of helping you reach the right decision.

THE COURT: No, and I understand that, but I would ask you this question before we do it, and then we'll move ahead with the examination. If my interpretation isn't correct -- and it's evolving, certainly, and we'll talk about it further -- then how do you ever get to the effects prong? I think that places almost an untenable burden on the effects prong.

People, lawyers and judges, have struggled with the Lemon test, as you well know, and will struggle further with it in this case as we grapple with this issue. But on the effects prong, I believe it is a highly subjective portion of the Lemon test. And --

MR. GILLEN: And I don't want to revisit all the issues here. I mean, from our perspective, as you know, we think that the primary effect of curriculum change is the effect on instruction. That we think is the appropriate effects test.

With respect to what you're looking at now, I think that it's what the objective observer, we think in a classroom -- if you decide to go broader, that is your decision -- the objective, reasonable person reasonably informed, if you go that way. Now, Your Honor, but there's still -- that has to be demonstrated through admissible evidence.

I think -- and I agree with you entirely that when you look at the cases, it's not clear, but what I believe the better reading of the cases is, is that they're looking at things about which they can take judicial notice. And that is essentially what they have done in many instances. So far as I can make out, they're looking at legislative history, which is a public record, and they're also looking at facts surrounding a forum about which they can take judicial notice.

I don't see -- and I don't want to put it too strongly because it is a sensitive issue. The Lemon test to the establishment clause is not a wholesale repudiation of the Federal Rules of Evidence. I think that the effects have to be shown by evidence that is admissible under the rule.

THE COURT: I understand your point, but I would say, just to close this off or end this portion of the discussion, that legislative history could, in itself, be hearsay.

MR. GILLEN: I agree. Unless it fits within one of the exceptions, you are right.

THE COURT: How do you fit it within the exception? How do you fit a statement by a legislator on the floor of the House of Representatives or the Senate or in this case a member of a school board, how do you fit that -- and it may be an admission here, of course, because they're party defendants, but in the case of another legislative history. And that's what I struggle with in this case. And when you use the word "objective observer," that's not the way it's described in every case, and I know you're aware of that.

MR. GILLEN: I agree with you entirely, Judge. When you start to look at this sea of case law -- and you know and I both know there's language from the United States Supreme Court saying don't read these opinions as if they're a piece of legislation because we use words variously in different cases.

It does create a problem for us trying to find out where the line is here. And I don't want to rehash it, but I would say, I think, that the proof of effects has to be proved via admissible evidence.

THE COURT: I understand that, and the objection is noted on the record. We'll take the testimony subject to the objection, and we'll revisit that at a later point in time.

Mr. Harvey, who properly has been on the side lines while we've had that interesting dialogue, quitting while he's ahead, can proceed now with his examination.


Q. Mr. Stough, you told us when we were together on Wednesday that you are an avid reader of the local newspapers. Is that correct?

A. Yes.

Q. Remind us, please, what are the local newspapers for the Dover community?

A. The York Daily Record and the York Dispatch.

Q. How often do those papers come out?

A. They come out daily. The York Daily Record is the morning paper, and the York Dispatch is the evening paper.

Q. So is that --

A. I'm sorry, no, they don't come out -- they come out daily throughout the week. There is one paper on Saturday, a morning paper, and then there's the Sunday News which is published by the York Daily Record.

Q. And is that all of the newspapers that serve the Dover community in addition to whatever national or statewide papers there may be?

A. Beyond the local -- like, we have a Community Courier that really doesn't carry any kind of newsworthy material. It's just things that are happening in the community, advertising. Beyond that, those are the two.

Q. Now, these letters to the editor that are contained in P671, have you read them?

A. Yes, sir.

Q. When did you read them?

A. I read them contemporaneous with their publishing, and then I was given a stack of them after the first search, and I read through all of them at that point in time. And then when we finally got everything put together in the notebooks, I read through them again.

Q. So you've read most of them three times?

A. I've read every one of them two times, most of them three.

Q. Now, please tell us how this chart, P671, was put together. What did you do to be responsible for the information on this chart?

A. Okay. The letters to the editor are, first off, arranged chronologically, numbered. And as you move across the chart, you'll see that they are dated. The next column would be the title of the article, and beside that would be the author, if the author's name was available.

Then the next column says, Subject of letter relates to the controversy at issue, and you'll find that every one of these says "yes." Because what I was looking for was, did this deal with the controversy as I described it earlier.

Q. So you noted that -- you made sure the date of the article was reflected correctly on the chart, you made sure the title of the article, the author, that all of that was correct. Do I understand you?

A. Yes, sir.

Q. And then in addition, you made sure that every single one of these related to what you referred to as "the controversy"?

A. Right.

Q. And then did you do anything else?

A. I also then, during the reading of the article, tried to determine whether it discussed religion. And I looked for key words. I looked for "creationism," I looked for "religion," I looked for "theology." And I also looked a bit at -- I looked at the content of the letter to see if it really dealt with religion.

Q. What if it just discussed intelligent design, did you treat that as discussing religion?

A. Well, first off, so I can be clear, I do believe that intelligent design is religion. However, you would get letters that would say -- they would treat intelligent design as science. They would say it's science because of this, and it would cite scientific evidence. There would be no mention of religion. And if I did find something like that, you would find in the column "no."

Q. Now, for the ones that you determined discussed religion, did you put down a quote in your chart just to illustrate why you considered it to discuss religion?

A. Yes, I did. And sometimes I actually put two quotes down.

Q. Give us an example of a -- pick one off your chart, one that discusses, in your mind -- of a quote that illustrates that it discusses religion.

A. Number 2, Buckingham wrong on text. Creationism is religion plain and simple. Or, Number 1, Creationism is not science. Religious beliefs have no place in public, government-funded classroom. Creationism is nothing more than faith.

Q. And so you did that so somebody could check your chart and see that you had, indeed, correctly determined that these articles discussed religion?

A. Yes.

Q. Now, the final thing, did you note whether it was pro or con the Dover Area School District Board of Directors policy?

A. For my own curiosity, I was wondering if the writer -- and this was very subjective at times -- if the writer was in favor of what the school board had done or if they were against it. If they were, I noted that as being pro, and if they weren't, I noted that as being con.

Q. And can you tell us, did you count up the number of letters in this chart, this P671, that discuss religion in the context of what you referred to as a controversy?

A. Yes, I did.

Q. And of the 139 letters to the editor from the York Daily Record that are in this binder, how many of them discuss religion?

A. 86.

Q. And then were there, in fact, some letters that were pro-Dover Area School District Board of Directors?

A. Oh, yes, yes, absolutely.

Q. And were there some that were con?

A. Yes.

MR. HARVEY: Your Honor, that's all I have for that exhibit. We have three other binders I'll try to move through quickly.


Q. You have with you P674. Please tell us, what is P674?

A. P674 would be a collection of the editorials from the York Daily Record for the period June, 2004, through to September, 2005.

Q. And do these -- are these editorials that discuss what you called "the controversy" before?

A. Yes, they are, yes.

Q. And, again, did you make sure that you had all of the editorials for the York Daily Record that discuss the controversy for the time period you mentioned by using the services of our legal assistant?

A. Yes, we used the same process.

Q. And have you read these editorials?

A. Yes, I've read every one.

Q. And when did you read them?

A. Again, I read most of them contemporaneously with their publishing. I read them after the 10th of September. I don't know if earlier I said the 10th or the 20th. And then I read them once more once we had the notebooks put together.

Q. And did you do with these articles -- these editorials, excuse me, what you did with the letters to the editor that we just discussed, in other words, verify the information that's on the chart that's been marked as P674?

A. Yes, I did.

Q. And did you, as with the letters to the editor, did you identify quotes to show that where you indicated that it did discuss religion, that somebody could look at it and see that you were right, that it was discussing religion in the context of this controversy?

A. Yes, I did.

Q. Can you give us an example, please?

A. Sure. Number 4, What do you think, creationism and evolution? Yes, I believe that creationism should be taught in schools because evolution is only a theory, and the Bible is God's word, which has stood the test of time. Remember, God created all things.

Q. And how many editorials were there for the York Daily Record that discussed what you've called "the controversy" for the period June, 2004, to September, 2005?

A. 43.

Q. And of those 43 editorials, did you make -- did you count up how many discussed religion?

A. Yes, I did.

Q. And how many was that?

A. There were 28.

Q. Now, if you turn to Exhibit P672. Now, we've got to give equal time to the York Dispatch. Did you -- what is P672?

A. P672 would be the letters to the editor for the York Dispatch for the period June, 2004, through to September, 2005.

Q. And this is very similar to what was done with respect to the letters to the editor for the York Daily Record?

A. Yes.

Q. How many letters to the editor were there that related to the controversy for the period June, 2004, to September, 2005?

A. 86.

Q. And did you --

A. I'm sorry, Mr. Harvey, did you ask me related to the controversy?

Q. Yes.

A. 86, yes.

Q. And have you read these letters?

A. Yes, I have.

Q. When did you read them?

A. Again, I read them as they were being published. I read them when I got a stack of them after September 10th, and I read them again once we had put the notebooks together.

Q. And did you verify the information on the chart and follow the same protocol that you did for P671?

A. Yes.

Q. And did you -- can you give us an example of a statement that you quoted to prove that the letters to the editor were, in fact, discussing religion as you indicated?

A. Sure. Number 5, Wilson would not approve. Creationism and its cousin, intelligent design, are devoid of scientific facts.

Q. And, again, you treated the word "creationism" as a reference to religion?

A. Correct, yes.

Q. And of these 86 letters to the editor, how many did you count up that discuss religion in the same context?

A. 60.

Q. And please, finally, turn to what's been marked as P675. P675 is a very similar exhibit except it's for the editorials for the York Dispatch from the period of June the 1st, 2004, to September the 1st, 2005.

A. That's correct.

Q. And did you follow the -- did you read these editorials?

A. Yes, in the same fashion.

Q. And how many editorials are there?

A. There are only 19.

Q. And these are 19 editorials that relate to the controversy, as you described it?

A. That's correct.

Q. And you believe this is all of them for the same reasons?

A. Again, yes, we followed the same process.

Q. And of these, did you follow the same protocol for determining whether they discussed religion in the context of the controversy?

A. Yes, I did.

Q. And of these 19 editorials, how many discussed religion in the same context?

A. 17.

Q. Now, Mr. Stough, I would like you to just put those aside. We're done with that. And I'd like you to tell us, please, whether you believe that you have been harmed by the actions of the Dover Area School District Board of Directors as it relates to the change to the biology curriculum.

A. Yes, I believe I have been harmed. And I believe, by extension, my daughter has been harmed, also.

Q. Tell us how you believe you've been harmed.

A. I believe that the actions of the school board in adopting this policy including intelligent design have usurped my authority to be the one in charge of my daughter's religious education.

Intelligent design posits an intelligent designer, which for me they're talking about God. It is a more literal translation of the Bible than I would accept and I plan on teaching my daughter, that type of non-literal interpretation.

And even if it didn't hurt me, if I didn't have a problem with the intelligent design, there are other individuals in the community that I think it does affect. I think it's an affront to the Constitution. I think their actions and their comments --

MR. GILLEN: Objection, Your Honor, to the extent he's offering his opinion about how it hurts others in the community.

THE COURT: Mr. Harvey.

MR. HARVEY: Your Honor, he's testifying about the harm to himself, and if he perceives that this is a harm to other people in the community and that, in turn, harms him, I think he can testify to that.


MR. HARVEY: Because it's relevant to the harm that he has suffered here.

THE COURT: How is that relevant to the harm he suffered? It's his own claim. He's a party plaintiff. How does that help your case if he talks about how he perceives that it's harmed others?

MR. HARVEY: If he believes that there's another member of the community that's being subjected to someone else's religious views by a governmental authority and that bothers him because as a citizen he believes in the Constitution and he says, that really bothers me when I see somebody who's a member -- who doesn't share the views of the religious majority in this community and is being singled out and made to feel that they're not a part of this community based on their religious beliefs, I think he can testify about that.

THE COURT: Is that actionable?

MR. HARVEY: I believe that's a sufficient basis for standing, yes, Your Honor.

THE COURT: I don't think it is. I'll sustain the objection. I'll stand corrected if you can give me some authority, but I don't think that's actionable. He couldn't bring a claim independent of his own claim on behalf of others who he perceived to be harmed. I don't see that.

MR. HARVEY: Your Honor, we've looked at P127, and we see that the school district published its intelligent design policy to the entire community and is advocating intelligent design to the entire community, and on that basis, I believe that he does have standing.

THE COURT: You're conflating two things, though. My analysis would be, again, back to the Lemon test, how it was disseminated and how it was received. And when we get into the reasonable observer, I understand that. But when we're talking about -- you're into harm to him of a constitutional nature, and I just don't believe for that purpose -- you've gotten testimony in as to things that were received in the community generally, and those things will be utilized for that purpose. But when he gets into others in the community who he perceives to have been harmed, I just don't see it.

MR. HARVEY: Well, I will make one more comment without belaboring the point, Your Honor, and that is, if I was a member of the majority in the community and I believed in the -- I was a member of the religious majority and I had the same religious views but I was offended because it was being forced upon my neighbor who was not the same member of that same religious majority, I believe that I could have a claim on that basis.

THE COURT: What's the religious majority?

MR. HARVEY: In this case, Your Honor, the religious majority is the people -- is the school board's advocating a position here and endorsing a message that is held by, presumably, the majority in the community because they're the elected officials.

THE COURT: Well, you have numerous plaintiffs. All the plaintiffs were found to have standing by my prior orders, so you have plenty of plaintiffs. I just don't see it. I'll sustain the objection to that portion of the testimony.

If you can cite me to some authority that I'm not aware of as to his ability to testify to harm that he perceives has befallen others, I'll stand corrected. But for the moment, I'll sustain the objection.

MR. HARVEY: Understood.


Q. Mr. Stough, you testified on Wednesday that your daughter is in ninth grade right now at the Dover Area High School. Isn't that correct?

A. Yes.

Q. And she's taking biology right now?

A. Yes, she is.

Q. Have you considered how you are going to deal with the board's curriculum -- the biology evolution policy, the intelligent design policy, when it comes up again in, I believe, January?

A. Well, at this point -- and this has been a subject of discussion among -- between my daughter and I. We're going to wait and see what happens here in the court. It may not be an issue. However, I think at this -- I believe at this point she will probably step out with the teachers while the statement is being read.

Q. If she's going to step out of the classroom, or that's your view, how are you harmed by that?

A. I'm harmed by that, she's harmed by that because she's no longer part of the accepted school community. She's being told that she's being removed from the classroom.

Q. Mr. Stough, do you have in front of you P702?

MR. GILLEN: Your Honor, this is a fresh piece of hearsay not subject to our standing objection.

THE COURT: What is 702?

MR. HARVEY: Your Honor, it was something that was sent to Mr. Stough in the mail, and it's not offered for the truth of the matter asserted, Your Honor.

THE COURT: Let's have him identify it, and then I'll take any objection that you have.



Q. Do you have P702?

A. Yes, I do.

Q. What is P702?

A. On September 29th, when I went back to my school, I went to my mailbox, and there was a letter addressed to me at my school address, and this is a copy. I have the letter with me. It was basically half sheets. That's why it appears the way it does on the paper that I copied it on.

But this is a letter that I received in the mail. There was no return address on the envelope, and there was no signature on the piece of mail.

Q. And you received this in the mail at your home or your work?

A. At my work.

Q. And I noticed that the bottom right-hand corner is cut off. Do you actually have a better copy of this?

A. I have the letter.

MR. HARVEY: Your Honor, we'll substitute a better copy of this after he's done testifying, if that's okay with you and defendants' counsel. And I have no further questions on that document.

THE COURT: Do you want to interpose an objection?

MR. GILLEN: Yes. It's along the lines of what I've discussed with you, Judge, and I don't want to belabor the point, but, again, it's --

THE COURT: It might be different. We don't know who wrote it.

MR. HARVEY: That's correct. It was, I believe, an anonymous letter received by him.

THE COURT: Are you going to seek to have it made part of the record?

MR. HARVEY: Yes, Your Honor.

MR. GILLEN: Your Honor, I object. It's not admissible evidence.

MR. HARVEY: Mr. Gillen keeps using the word "admissible." It certainly is admissible if you offer to show the harm to this plaintiff here. It's not offered for the truth of the matter asserted, so it's not admissible for that purpose, but it is admissible for another purpose.

THE COURT: I think this is a little different, and perhaps we're being more clinical here. But to the extent that he read editorials and letters which it appears beyond dispute were printed in the local paper, that's fine. I understand that he has testified, the witness, that he read this.

I am concerned that we have an article, we don't know the source of the article, we don't know what it was published in. It's got handwriting that appears to be of different types on it. That raises a flag with me.

I understand why you're presenting it, but I am -- you have the testimony on the record that he received something in his mailbox. I'll let you ask additional questions, if you want, on this, but I'm loathed to admit this. I may not admit this. I'm not so sure that I want to admit this.

MR. HARVEY: I was just going to ask the witness his reaction to the letter.

THE COURT: And that's fine. I'll allow you to do that.


Q. Can you please tell us your reaction to this letter that you received, Mr. Stough?

A. That's a tough question. I was amazed that it came to my work. I thought someone had crossed a line. If you want to say that this isn't a religious issue, this says it all. There's a lot of emotion in here. I don't know if this applies at all, but this certainly to me doesn't -- a person that is professing to be a Christian, you don't only have to talk the talk, you've got to walk the walk.

MR. HARVEY: I have no further questions, Your Honor.

THE COURT: All right. Thank you, Mr. Harvey. Mr. Gillen, are you going to cross-examine?


THE COURT: You may proceed.

MR. GILLEN: Brief cross, Your Honor.



Q. Good morning, Mr. Stough.

A. Good morning, Mr. Gillen.

Q. We met at your deposition. I've got a few questions just for the record. To be clear, you did not attend any board meetings prior to December, 2004?

A. December 1st, 2004 would have been the first.

Q. So you have no personal knowledge of what occurred at these meetings?

A. No, I do not.

Q. You've indicated you talked to your daughter Ashley. You think at this point that she will opt out?

A. Yes, sir.

Q. You recognize she'll have a choice, to opt out or not?

A. I assume. As it stands now, yes, I assume.

Q. You understand that Ashley is using the Miller and Levine text in her honors biology class?

A. Yes.

Q. And that she'll be taught evolutionary theory in her honors biology class?

A. Yes.

Q. You understand that apart from the mention of intelligent design in the statement that would be read, if she chose to attend the class while it was read, intelligent design will not be mentioned at all?

A. Beyond that statement, yes, I understand that.

Q. You understand, I believe, that the book Of Pandas is in the library?

A. Yes, yes.

Q. And you have no objection to the book being in the library. Correct?

A. I don't feel that I can object to the book being in the library because that would be short of censorship, but I certainly don't think it's an appropriate book to be in a high school library for several reasons.

Q. But you have no objection?

A. I don't think I can object.

Q. Now, you've testified that you believe the intelligent designer is God.

A. Yes, sir.

Q. Would your opinion as to intelligent design change if I could demonstrate that intelligent design theory does not rely on reference to God to prove its claim of design?

A. I'm not sure I can answer that hypothetical. I'm not sure how you could prove that one way or the other.

Q. I understand that.

A. I know what your question is. I just am really -- I've heard that question before. I just --

Q. Sure. It's not a trick question. What I'm saying to you is, for you the intelligent designer is God. Correct?

A. I think that it's assumed that it is. I know what you're saying. They do not say it's God.

Q. Right. In fact, do you have any understanding concerning whether they insist that it's a supernatural cause?

A. You mean in terms of --

MR. HARVEY: I'm going to object, Your Honor, on the grounds that it's quite ambiguous as to who the "they" in that statement is.

MR. GILLEN: I'm simply asking him his knowledge of intelligent design theory.

THE COURT: He used the word "they," and I think we ought to probably establish who "they" are. I think his question parroted the answer that he got. Let's ask the question.

MR. GILLEN: All right.


Q. Mr. Stough, for the purposes --

A. Stough.

Q. Stough. Again, forgive me. For the purpose of this question, I want the "they" -- you and I to come to an understanding that the "they" are proponents of intelligent design theory.

A. I understand.

Q. Good enough. And what I'm saying is, would your opinion of intelligent design theory change if I could demonstrate that the proponents of intelligent design theory do not insist that the source of design is God?

A. No.

Q. Why is that?

A. Because it is not a well-tested theory. The testing is based on -- or the tests that they point to, the hypotheses that they point to are simply used to negate evolution. They don't provide support for intelligent design as a theory.

Q. That's your understanding of intelligent design theory?

A. That's my understanding of the concept of intelligent design.

Q. You've referenced a notion of testability.

A. Yes, sir.

Q. Based on that criteria of testability that you've described in brief, you believe intelligent design is not science. Is that correct, Mr. Stough?

A. Yes, because it does not allow for falsifiable hypotheses to be generated.

Q. So, again, my question is, based on that notion of testability that you've advanced, is that the basis for your understanding that intelligent design is not science?

A. That's correct.

Q. Would it change your opinion if I could demonstrate or it could be shown that intelligent design is testable in the same way that evolutionary theory is testable?

A. If you were to show me valid and reliable testing that supports intelligent design as opposed to negates another theory.

Q. That's a yes, I take it, if that could be shown?

A. Given those conditions, yes.

Q. Okay. And in truth, you don't know whether all of the theses advanced by evolutionary -- or the proponents of evolutionary theory are testable in the manner you've described. Correct?

A. Only because my knowledge of that is limited.

Q. So you don't know?

A. I don't know.

Q. Now, you're also not familiar with work that's being done in the area of intelligent design theory. Correct?

A. If there is work being done, no, I'm not aware of it.

Q. But you believe that the evidence will never point to design. Is that correct, Mr. Stough?

A. "Never" is one of those absolute words that I avoid. So would you ask me the question again, please?

Q. Sure. I'm asking you, and you can -- I'm asking you if your testimony today is that you believe the empirical evidence could never point to design.

A. I can't say that I believe it will never point to design.

Q. Okay. You have testified to at least reading about the use of the term "creationism." Correct?

A. Yes, yes.

Q. And you associate creationism with Genesis. Correct?

A. Yes, creationism with Genesis 1, yes.

Q. Do you understand intelligent design to be creationism?

A. I understand it to be special creation, yes. It calls for an abrupt beginning, it calls for some supernatural causations.

Q. And in your judgment, that's creationism?

A. I believe that's special creation in the form of creationism, yes.

MR. GILLEN: No further questions, Your Honor.

THE COURT: Any redirect?

MR. HARVEY: No, Your Honor.

THE COURT: All right. Sir, that concludes your testimony. You may step down. Thank you. Exhibits --

MR. HARVEY: Your Honor, may I make a suggestion before you begin that?


MR. HARVEY: That is that we have an expert witness, Dr. Padian --

THE COURT: And you're going to tell me you want to get moving?

MR. HARVEY: That's a dangerous thing to say to the Court.

THE COURT: No, that's fine. I know you have an expert and you want to get moving on the expert. So you want to reserve the argument on the exhibits until later?

MR. HARVEY: Exactly, Your Honor.

THE COURT: I'll rely on you then to remind me so that we get those in, and let's take your witness.

MR. WALCZAK: Your Honor, plaintiffs call Dr. Kevin Padian.

KEVIN PADIAN, PH.D., called as a witness, having been duly sworn or affirmed, testified as follows:

THE CLERK: If you could state and spell your name for the record.

THE WITNESS: My name is Kevin Padian, P-a-d-i-a-n.

THE COURT: You may proceed.



Q. Good morning, Dr. Padian.

A. Good morning, Mr. Walczak.

Q. Where do you live?

A. I live in Berkeley, California.

Q. What do you do there?

A. I am Professor of Integrative Biology at the University of California and a curator in the Museum of Paleontology.

Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 292. Matt, could you put that up. Do you recognize this document?

A. It looks like my CV.

Q. Is this a reasonably accurate representation of your professional experience?

A. I believe that's a recent one, yes.

Q. I'd first like to focus on your educational background. And you have a bachelor's of arts degree from Colgate University?

A. Yes, sir.

Q. And you have a master's of arts in teaching. Is that correct?

A. That is right.

Q. What does that mean?

A. It means that I have permanent certification in the State of New York and several other states to teach life science in grades 7, 12. And for this training, you take postgraduate courses in education and your subject major, whatever it happens to be, and you do intern teaching and you're certified to teach.

Q. And what was your subject major?

A. I majored in natural sciences at Colgate, and so I'm certified with life sciences.

Q. And have you ever used that degree to teach elementary or secondary school biology?

A. Yes. I've taught seventh-grade life science and biology, and I've taught two years of sixth-grade process science.

Q. And when was that?

A. That would be in the years '72 to '75.

Q. And after that, did you go back to school to get your Ph.D.?

A. I went to Yale for my Ph.D. after that, which I got in biology in 1980.

Q. And did you write a dissertation for your Ph.D.?

A. I did. That's required.

Q. And what was the topic of your dissertation?

A. The topic of my dissertation was on the evolution of flight and locomotion in the flying reptiles called pterosaurs, which lived during the age of dinosaurs.

Q. And where was your first professional appointment after graduating?

A. I went to Berkeley right after that as an assistant professor, and I've been there ever since.

Q. And what's your position there now?

A. I am a professor and curator, so a professor in the Department of Integrative Biology and curator in the Museum of Paleontology there.

Q. And what do you teach, Professor Padian?

A. I teach a variety of courses over 25 years. Some I don't teach anymore because the curriculum changes, but currently I teach and coordinate half of our upper division junior/senior course in evolution. I teach an upper division course in the evolution of vertebrates. I teach a number of freshman seminars usually on dinosaurs. I teach a number of graduate seminars on topics that range from macroevolution to the history of evolutionary thought. Currently we're doing Darwin's Origin of Species.

Q. And you said a moment ago that your background and expertise is in evolutionary biology and paleontology. Could you tell us what those specialties involve?

A. Sure. Evolutionary biology is a broad field that ranges from the study of the changes through time of molecules to the changes in time of the whole history of life as it relates to the changes of the planet Earth through time, the whole solar system. And my specialty in this is what we call macroevolution. Within that, I focus principally on how major new adaptations begin in evolution.

Q. When you say "major new adaptations," what do you mean?

A. Well, about things like flight or how, for example, dinosaurs took over the earth. That's a great big change in evolution that happened about 225 million years ago. I work on problems like that.

And I also work on problems involving dinosaurs and general things about reading their footprints, their locomotion, again, how the age of dinosaurs got started. And I'm interested in the history of evolutionary thought, how people have conceived of the idea of evolution and how it's developed over time in the past 200 years.

Q. And is some aspect of what you just talked about paleontology?

A. Paleontology is the study of life of the past, generally put. And so when I say that I work on macroevolution, these are large changes that happened at a scale above the population level. So we usually have to look at them through time.

Q. And do you look at something called the fossil record?

A. Fossil record is where I spend a lot of my time.

Q. And what is the fossil record?

A. The fossil record is the record in the rocks of the remains of organic beings through time. It can take the form of bone shells, footprints, trace fossils, all sorts of things.

And what we do is, we don't -- I mean, when you look at television documentaries, it normally focuses on people going out in the field and parking the truck and walking out in the Badlands and, you know, stumbling over bones someplace and finding that it's interesting in digging up and getting a skeleton and putting it in plaster and taking it back to the lab.

That's the first stage of what we do, but that's just the beginning of the science. The science is asking the questions about how life evolves, how the changes in life have happened through time.

Q. It sounds like you have to have knowledge in many different fields.

A. Well, my department is called integrative biology for a reason, that we actually look at problems in a rather integrative way. That is, my work involves physiology, bone histology, which is the tissue form of bones and mechanics of growth, as well as fossils and geologic change through time.

So, yeah, the questions you ask could be pretty complex and integrative, and different kinds of evolutionary biologists and paleontologists work on different aspects of these problems.

Q. And are you still involved in research?

A. Oh, yes. Berkeley is a premiere research institution like Harvard or Yale or Penn State, and basically most of what we do is research and teaching. So as part of my job, I'm expected to produce a lot of peer-reviewed articles and books and things on a regular basis.

Q. And you've been doing research for 30 years now?

A. Yeah, roughly.

Q. And this is all on evolution and paleontology and the fossil record?

A. Oh, yes.

Q. And you mentioned that you've --

(White noise.)

MR. WALCZAK: Is that a hint, Your Honor?

THE COURT: No. Inadvertent button push.


Q. You mentioned that you've published peer-reviewed research. Let me direct your attention to the top of Page 2 of your curriculum vitae, or I guess about a third of the way down. Now, it says there, Publications. What do you mean by that?

A. These are -- the list that I enclose with my CV here includes what we call peer-reviewed publications. And so these would be publications that have been sent out to our professional journals and, in some cases, to books that are edited by professionals again.

I don't know if you've gone through the concept of peer review much in the court, but by "peer review" we mean that if you publish -- if you have some research that you've produced and you want to get it published, you send it to a journal in the field, and the editor, who is an expert in the field, takes your manuscript and sends it to several experts that you can't choose and you don't know who they are. And --

Q. So you, as the author, don't know who is reviewing your articles?

A. That's correct. This is the anonymity of peer review. Ordinarily you don't know who these commentators are.

Q. What's the purpose of that?

A. Well, it's basically so that they can give a frank appraisal of what you're writing without worrying about whether they're going to offend you and, if you're a senior scientist, whether you're going to get mad at them or something. I don't know. But it's been a habit that's always been the case in the scientific field, certainly.

And the reviewers who look at your papers then decide whether you've followed the right procedures for going about the science, whether the methods you use are up to date, whether you've cited all the literature that's relevant, whether you've inferred or speculated on more than you should, or whether it's basically within the grounds of what is acceptable science.

And they will propose changes, major or minor. If they don't think that your paper is very good, they'll suggest it be rejected, and the editor takes that into consideration.

Q. And so is everything that is submitted to a peer-review journal published?

A. Oh, no. A lot submitted to peer-review journals isn't published. It depends on the journal. On the journals on which I've been an editor, you have an acceptance rate of anywhere from 50 percent upwards or downwards to 30 percent, for example, in the ones I'm familiar with.

Q. And is there a -- what you might consider a hierarchy of journals for publication?

A. Yes, there are certain journals that pretty much every scientist in the world reads every week. Two of them in particular are Nature, which is published in London by Macmillan Journals, and Science, which is published in Washington every week by the American Association for the Advancement of Science, which is our sort of central public science organization in America.

Everybody reads those journals because they contain good review articles, but mainly the hottest sort of new research in all fields. They will also include news about new scientific developments not just in science but in education, industry, technology, even this court case, for example.

Q. And do they have a high rejection rate?

A. Oh, yes, they have a very high rejection rate. No more than about 10 percent of what's submitted to them even gets considered for publication.

Q. Now, is there something called -- is it an impact factor?

A. Yeah, there's a -- the Institute for Scientific Information produces a measure of how important journals are basically to the fields. Journals like Nature and Science have a very high impact factor. But they're general journals that everybody reads, and they're highly selective.

Some fields are smaller fields, they don't have much of an impact because they're not cited very much simply because the fields are small, but within the fields they might be very important. So you could have an impact factor that is relatively low, but in the field it's high because it's cited a lot for that field.

Q. And the way they measure this impact factor is to see how many times an article from that publication is cited thereafter?

A. That's basically it.

Q. And what journals have you published in?

A. Well, I've published in a lot of journals. My colleagues and I try to -- you know, you always try to go for the best journal in the field that you're writing for the people who would be the most interested in the research.

Sometimes I'm writing about dinosaur footprints, and I might try to publish in a journal that publishes a lot of footprint work. Other times, for example, when we've done our work on how fast dinosaurs grow, learning about this from the fine structure of their bone tissues, we've gone to Nature, we've gone to Paleobiology, we've gone to Journal of Vertebrate Paleontology, again, sort of the best journals in the field that we can target, depending on the scope and interest of what we're trying to do.

Not all the papers are gems, not all are Nobel prize quality. Sometimes they are very general, and sometimes they're a very specific interest.

Q. Now, I note that by my count, you've got eight pages of peer-reviewed publications listed here in your curriculum vitae. Do you know how many peer-reviewed publications you are either an author or coauthor on?

A. It's 8200. I don't keep a correct count.

Q. And have you included in this curriculum vitae nonpeer-reviewed publications?

A. I believe the copy that I gave the Court may have only the peer-reviewed ones. I have about another eight or ten pages of things like book reviews and popular articles, things in Scientific American and stuff like that. But I didn't include all those here. I may have included some of the books that I've authored or edited.

Q. Let's turn to -- I believe it's Page 9. And you've got a heading on books. And you are either the author or the editor or a contributor to these nine books?

A. Yes.

Q. And just pick one. Tell us about your contribution to, for instance, the Encyclopedia of Dinosaurs, and what is that book?

A. The Encyclopedia of Dinosaurs was published by Academic Press, I guess in 1997. It's a standard reference work for the field. And my job, along with Phil Currie, my coeditor, was to organize and solicit the contributions to make sure all the relevant entries were covered, to read the manuscripts when they came in from the authors, if they needed changes, to suggest them or to make them.

And, in fact, as it turns out, I wound up writing about a sixth or a seventh of the book before publication just because of filling in the parts that were needed, as inevitably happens with reference works.

Q. And this is a book that would be found in your public library or your school library as a reference text on dinosaurs?

A. Yes. This book is cited by other scientists in their publications. It is in libraries for ordinary people to read. We tried to write it at a level that somebody that would have a general understanding of dinosaurs would do it. And then for the dino fans and freaks, they're going to pick it up, too, and enjoy it as much as the rest of us.

Q. Now, does something become science or accepted in science because it's published in a book?

A. Well, it depends on the book. When books are published, they may have a seminal influence, but simply because something is published in a book doesn't mean that it's science. I think that that's a question of its reception by the scientific community.

If somebody writes a book and nobody reads it, is it influential? And the answer would be no. And if somebody writes a book but claims it's science and it's not cited by scientists, it doesn't stimulate scientific research and the ideas in it are never brought to peer review, then the answer is probably not much, because we depend on peer-review discussion of ideas and research results in order to further the progress of science.

Q. So anybody can write a book and proclaim that they have a new scientific theory, but the test really is whether it's ultimately accepted by a large part of the scientific community?

A. Yes. And here I think the term "theory," again, has to be looked at the way scientists consider it. A theory is not just something that we think of in the middle of the night after too much coffee and not enough sleep. That's an idea. And if you have a hypothesis, it's something that's a testable proposition, you can actually find some evidence that will help you to weigh it one way or the other.

A theory, in science, as maybe it's been pointed out in court, I don't know, in science means a very large body of information that's withstood a lot of testing. It probably consists of a number of different hypotheses, many different lines of evidence. And it's something that is very difficult to slay with an ugly fact, as Huxley once put it, because it's just a complex body of work that's been worked on through time.

Gravitation is a theory that's unlikely to be falsified even if we saw something fall up. It would make us wonder, but we'd try to figure out what was going on there rather than just immediately dismiss gravitation.

Q. Is the same true for evolution?

A. Oh, yes. Evolution has a great number of different kinds of lines of evidence that support it from, of course, the fossil record, the geologic record, comparative anatomy, comparative embryology, systematic, that is, classification work, molecular phylogenies, all of these independent lines of evidence.

Q. We're going to talk a little bit more in detail about some of those concepts in just a couple of minutes. Your expertise has been recognized by professional societies and scientific journals in a sense that you have been an officer or a committee chair on a number of prominent scientific associations?

A. Yes, if that's a measure. My work is published in the organs of scientific societies, their professional journals. I've served as an officer in a couple of societies and committee member, and I've been on the editorial board of a number of peer-reviewed journals in our field.

Q. Matt, if you could turn back to the first page of Dr. Padian's CV under Professional Service. Now, it appears that you've been an editor on the editorial board of more than a half a dozen journals. Can you tell us what it means to be an editor of a journal?

A. It generally means that when manuscripts come in, the chief editor will send them to you either for review yourself or for deciding whether they should be reviewed by people. Or if you send them out to review, you might gather the reviews from the referees and determine the merits of the manuscript in question.

Often, of course, with general editorial meetings you're looking at where the journal wants to go, what kinds of papers and research it wants to solicit, sort of things like that.

Q. And I note that you've had a couple of stints as editor of the Journal of Vertebrate Paleontology. Is that a prestigious journal in your field?

A. That is, in our field of just those paleontologists that run around the rocks and look for the remains of old animals with backbones, yes, that's our primary international scientific organization. Paleobiology is probably the premiere journal in the field of paleontology that works on macroevolution, which is one of the things that interests me.

Q. And you were the editor of Paleobiology for six years?

A. I was one of the editors on the editorial committee, yes.

Q. And you were also on the editorial board of Geology and the Proceedings of the Royal Society of London?

A. Yes.

Q. Dr. Padian, have you had any experience with high school or elementary school curriculum development and teacher training?

A. Yes. Since I've been in California, since the mid 1980s, I've worked in several capacities for the State Department of Education in California on various panels and committees.

Notably, I guess, I was one of the people who wrote and edited the state science framework for K12 schools in 1990. And this is the central document that embodies science education for the state. It's the document against which districts and other organizations will develop their curricula locally.

And my role there was to write about guidelines for the -- explaining what science is, the nature of science, explaining the goals for K12 in the life sciences and for some of the earth sciences and several other parts of that.

In addition, I guess I've served three times on what we call the instructional materials evaluation panel as a scientific member. California is an adoption state, which means that it's one of 23 states for which the state actually selects which textbooks can be used by local districts and for which state funds can be spent.

And so it's kind of a quality control that educators and content area specialists like scientists or historians or mathematicians will get together and evaluate textbooks and things submitted. And then the question is whether these are -- which ones pass muster and which ones don't, and that's what you can use state funds to buy.

Q. And you've been involved in that for several years?

A. Three times.

Q. And do you have familiarity with creationism and intelligent design?

A. Yes.

Q. And just tell us a little bit about that. What's your history of involvement?

A. Well, California has an interesting history with respect to the creationist movement, I guess we might call it creation science and related fields.

The Institute for Creation Research in Southern California has been very active since the early 1980s and various kinds of legal and social processes that have come out of objections to the teaching of evolution in California have mirrored what's happened in other states, as well.

And so early on in the 1980s I was one of a number of scientists who were involved in trying to clarify evolution and related science to the public and to advise the Department of Education and other bodies about it and to talk generally to the public about what evolution was.

And these organizations and sort of committees of correspondence, as they were called then, eventually morphed into what became the National Center for Science Education which I've been president of for some years.

Q. I'm sorry, you said you're president of the National Center for Science --

A. National Center for Science Education.

Q. Dr. Padian, can you tell us a little bit about the history of paleontology and its importance to evolution?

A. Sure. Paleontology, the idea that you're finding rocks that have the remains of ancient life in it, has been around actually in some form or another since the 1500s and 1600s when people first started to understand that these were actually the remains of organisms that were dead and not simply sports of nature or some kind of sculptural-looking accident.

The understanding of fossils really began to mature in the late 1700s when people realized that these were the remains of dead creatures that were not coming back, they were extinct. And the upshot of this meant that ideas about the philosophy of nature began to change as the enlightenment developed.

By 1800, you had people in both England and France developing systems of looking at the order of the rocks through time, moving up through a section, that could be correlated from one area to another. The same sequences of rocks were appearing. These were used in England, for example, by civil engineers to dig canals and to show them where reliably they could find the right rocks to dig canals through.

Part of these indications were by the fossils that they contained which also went up in the same sequence every time. And this resulted in the first real geologic map of England, which was produced in about 1800. So we're already talking about using fossils in a very forensic sense, that is, to help dig canals, but using them as an index for mapping geologic -- we call them strata or outcrops all over England. A similar development of the idea was taking place in France at the time and also in Germany.

So the idea that there was a progression of fossils in rocks from the oldest to the youngest going up through a section of rocks is really quite old. And it was developed, in a sense, that had nothing to do with any ideas about evolution. It was just seen as the progression of fossils through time.

And then ultimately in the early 1800s people began to understand that this reflected an idea of common ancestry change through time and the fact that in the past the world was not like it is now.

Q. And so what you've just told us about is taking place before Charles Darwin published his Origin of Species?

A. Oh, yes. Darwin doesn't publish the Origin of Species until 1859. The geologic map of England is being done by 1801, and already by 1846 they have a pretty good idea of the diversity of fossils through time.

Q. So was Darwin trying to explain the history of life or the fossil record?

A. No, he really wasn't. Other people were doing that at the time, including people like Richard Owen. What Darwin was doing was proposing a mechanism for how change through time could occur in a lineage of organisms, and he called that natural selection.

He made an analogy with what he called artificial selection, which is what breeders do every day in selecting plants and animals for the characteristics that we admire or want to use for various purposes.

Q. Now, we've had, I guess, testimony in this case where people seem to be using terms in different ways. Could you distinguish for us the way science uses the term "natural selection" from "evolution of life"? I mean, is there a distinction?

A. Yes. "Evolution," of course, refers to change through time in a general sense. Darwin's own definition is descent with modification, which is probably still the best one.

Natural selection is a mechanism, a process that accounts for a lot of that change, but it needs to be distinguished from evolution, per se, because there are a number of mechanisms, as Darwin noted, including sexual selection, which is another term he invented, a concept that he invented, as he did so many things, and it's just one mechanism for life to change. It's not the whole thing. Darwin was very clear on that in his writings.

Q. And can you distinguish evolution of life, the term "evolution of life," from the term "origin of life"?

A. Sure. And that's a common conflation in popular parlance. Evolution of life is essentially the whole enchilada. It's everything from the first organisms that appeared right up until the organisms that are alive today. That whole procession of things, all the patterns and processes that are involved in it, we would call the evolution of life.

"Origins" is a trickier phrase. The origin of life we expect, as Darwin said in 1859 -- the last paragraph of The Origin of Species refers to one or a few forms being the original embodiment of life. But today we look at the genetic material, DNA, RNA, and its genetic components, and scientists reason from this that they are so complex and so similar that they must have had a common origin. And this is the origin of life question.

That's separate if you talk about, like, origin of birds or origin of mammals or origin of the middle ear. Those things are part of the progression of life that's already established. They aren't something new that happens all over again that's, in other words, abruptly or specially put in there. They're just part of something that's already happening that now is modified to become something else.

Q. So as scientists would use "origin of life," that would be sort of first life?

A. Exactly.

Q. Now, it seems that genes and molecules are getting much of the attention today when you're talking about evolution. Is it still important to study comparative anatomy, fossils, geology, paleontology? I guess another way to say it, are you still relevant?

A. I'm a fossil like everybody else. No, genes and molecules get a lot of press, and deservedly so. The research on them has been amazing over the past half century. The new discovery has just come at an incredible rate. They're just revealing all sorts of new things about the world we never could have imagined. We could have hoped we could have known, but we wouldn't have known how.

But, oddly enough, the most recent great advances in biology are coming with the integration of this new molecular evidence with what we already know from comparative anatomy, from fossils, and from geology.

An example I could give you is like the hottest area in biology today is called evo-devo or evolutionary developmental biology. Evo-devo is not a rock group. And the thing about it is that the whole premise of evo-devo is that we are now understanding a lot more about the genes that actually code for the development of organisms. That is, we know the genes that make you line up in a front-to-back axis and make your limbs sprout and make you have wings instead of hoofs or whatever it happens to be.

These are under the command of a relatively well-organized system of genes that are universal among a great many organisms. And you can even transplant parts of these into other organisms, and they'll work properly, which is really amazing.

And why paleontology and evolutionary biology is relevant to this is because, for one thing, in the fossil record we see a lot of forms that are not present in any kind of shape today. Configurations of hands and wings and skulls that we can see by examination of the genetic structure and functions of development actually are produced in certain ways and they mimic what we see in the past.

So, oddly enough, paleontology, evolutionary biology are coming back front and center to be integrated in this very hot new area.

Q. So is it fair to say that molecular biology today reinforces what you find in paleontology or integrative biology?

A. Oh, yes. The molecular biology of the 1960s and '70s was very strongly what we would call reductionists. That is, they were looking for the little, tiny workings, because they were able to do so, of genes and structures in the cells and chromosomes, and that was really amazing.

But, you know, in a sense, all that work is figuring out how the carburetor goes, you know, what are all the parts here. But they don't lose sight of and it doesn't change the importance of, you know, how you drive the car, what the purpose of the car is in terms of running down the road and operating on the internal combustion engine. And that's where the evolution comes in.

Q. I want to ask you one other question coming back to natural selection, and you said that is a mechanism for driving evolution.

A. Yes.

Q. And is that a mechanism that is widely supported by the scientific community?

A. Oh, yes. Darwin proposed it at the same time that Alfred Russel Wallace came up with it in 1858. And since then natural selection has been tested in the wild and in laboratory populations by a great number of scientists. And there are many books written that summarize this research, and the understanding of natural selection is primary to understanding population biology and evolution.

Q. Now, next week an expert for the school district, Dr. Behe, are you familiar with him?

A. Yes.

Q. He's going to testify. And Dr. Behe has claimed that it is not possible to observe natural selection in the fossil record. And is that true, and, if so, is the fossil record relevant to evolution?

A. Dr. Behe and some of the ID proponents characterize evolution, Darwinism evolution, as they call it, as random mutation and natural selection alone. And natural selection is important, but it's not the only process. Random mutation is a whole other problem in language. But natural selection can be observed in the fossil record in a different way than we'd see it in populations.

When Darwin developed his idea of natural selection, he's looking at individuals running around out there. He's saying that an individual horse is going to be able better to escape a lion than another horse. That horse is going to live longer, produce more offspring with the same characteristics, and those will be passed on to the next generation. So this is an idea about individuals.

Now, the problem is, when we go out to the fossil record, if we have a nice fossil deposit here of snails or clams or whatever it happens to be and you've got, you know, many local fossils, fossil deposits which you can find things like this, you know, we can't tell whether a particular fossil clam was better adapted than the guy who is dead next to him. We can't measure how many successful offspring he had. We just simply don't know. We don't know anything about the reproduction of fossils, individual organisms. And so in that sense, we're not looking at that level of natural selection.

But as everybody knows, we have a concept in evolution called "adaptation," which is sort of the main thing that drives the origination of new sort of types of organisms, the way that they get around in the world. And this notion of adaptation, by definition, is shaped by natural selection.

And my job is to look at macroevolution, and I focus on how new adaptations get going. So I study natural selection all the time in its ramifications for the development and improvement of all these complex adaptations that click in piece by piece in fossil animals and are shaped and preserved by natural selection.

Q. So the fossil record, in fact, helps to support the whole concept of natural selection?

A. In fact, it's indispensable to it, because we could look at natural selection in populations today, but our compass for looking at populations today is on the order of years, maybe decades, in some cases centuries.

A trend that we see today might reverse itself. It might be just sort of a drift or a random fluctuation, a temporary change, but in the fossil record, you see change through the big time. This is deep time, we call it. This is like mega history.

MR. WALCZAK: Your Honor, I was thinking about taking a break now. It might be an opportune time.

THE COURT: Why don't we do that. Let's take a shorter break than we've been taking so that we can keep moving with this witness. We'll take a 15-minute break at this point, and we'll return with Mr. Walczak's continued direct examination of this witness. We'll be in recess.

(Recess taken.)


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