Kitzmiller v. Dover Area School District

THE COURT: Be seated, please. It looks like Mr. Gillen is up, and you may proceed with cross examination.

CROSS EXAMINATION BY MR. GILLEN:

Q. Thank you, Your Honor. Good morning, Dr. Pennock.

A. Good morning.

Q. Pat Gillen. We met at your deposition, and I'm here today to ask you a few question.

A. Good to see you again.

Q. Thank you, same here. You know, you did miss Ken Miller's testimony which Mr. Rothschild referenced, and it was quite a show, but let me ask you this. I learned something from Dr. Miller's testimony that I didn't know before, which is that Ken Miller believes that God is the creator of all things seen and unseen, and I ask you this. That doesn't make Ken Miller an intelligent design creationist, does it?

A. I'm sorry that I didn't get to hear Ken himself. I feel like one follows dogs and children, you know, you don't want to do that. You also don't want to follow Ken Miller. He's a hard act to follow. And I don't know the way in which he put that, so could you say again what that --

Q. My request is this. Does Dr. Ken Miller's belief that God created all things seen and unseen make him an intelligent design creationist?

A. No, it doesn't.

Q. Okay, and that's because the religious beliefs of a given person doesn't determine whether or not that person is engaged in science, is that correct?

A. This express belief in a creator is compatible with evolution, and so that he believes that or that another one doesn't is not substantive to that.

Q. In fact, I believe some people describe that position as theistic evolution, the notion that evolutionary theory is consistent with their religious faith, is that correct?

A. That's right. Theistic evolution is sometimes used inconsistently though. Occasionally it is used in the literature to refer to a creationist type belief. That distinction I think is better, the term that's is better used is evolutionary creationism in that case. So sometimes theistic evolution is misused in that way, but the way that you're using it and the way in which you've described it is correct, compatibilist view.

Q. Thank you. And that doesn't make, Dr. Miller's beliefs doesn't make evolution a religious theory, correct?

A. That's right.

Q. And that's because a theory doesn't become scientific or not scientific based on whether persons discuss whether it's consistent with a given set of religious beliefs, is that correct?

A. The way in which one holds a position, articulates a position is relevant. So you have to look at exactly what they say. Sometimes people will make and hold a theistic view and claim that it's science. Other times you will speak of it as separate. So you have to look specifically at what people say with regards to that.

Q. But a theory doesn't become scientific or not scientific based upon whether its proponents have discussed its consistency with religious beliefs, is that correct?

A. When a person discusses whether or not the content of a view is consistent or not, right, at that point one is, it should be clear as to whether one is speaking qua scientists or qua philosophers say, and as long as one is clear about that then that's quite fine. One should not say qua scientist that this is so or not theologically.

Q. Well, is it your testimony here today that as theory becomes scientific or not scientific depending on whether a proponent has discussed its consistency with religious beliefs?

A. To determine whether a theory is scientific or not you have to look at the content of that theory itself.

Q. Is it your opinion --

A. So the proponents of that theory would be what they've said is going to be relevant when you find out about what that theory exactly says.

Q. And forgive me for interrupting you. Is it your opinion that a theory can become non-scientific because a proponent has discussed its consistency with religious beliefs?

A. Again my point has to do with what people say substantively. So it depends on what they say when they discuss its consistency. If they discuss substantively theological content, then that's part of the content of the view, then that is relevant.

MR. GILLEN: If I may, Your Honor, I'd like to ask the witness to examine his deposition testimony.

THE COURT: You may.

MR. GILLEN: Thank you. May I approach?

THE COURT: You may.

BY MR. GILLEN:

Q. Thank you. Dr. Pennock, I have given you copy of your deposition which I took on Tuesday June 14th, 2005, and I'd ask you to look at page 51 of your deposition testimony, line 10. Have you had a chance to --

A. I have found it here, yes.

Q. Okay. If you look at page 50, on page 9 I asked you a question, "Concretely do you think that a theory would be properly classified as not scientific if a proponent of that theory discussed its metaphysical implications?" And you asked me to ask that question again, and then you gave an answer. Would you look that answer over?

A. At line 13?

Q. Yes.

A. Uh-huh.

Q. I ask you again today, is it your opinion that theory becomes scientific or not scientific based on whether someone has discussed whether the theory is consistent with religious beliefs?

A. And as I said there, if the discussion is merely is it consistent or not, that by itself does not make it so.

Q. Okay. For example, the Big Bang theory is not a non-scientific theory, even though it's consistent with some people's belief in creation out of nothing, is that correct?

A. As a scientific theory the Big Bang itself is not a religious view, that's right.

Q. Dr. Miller also noted that he had a friendship with Richard Dawkins, and it was brought to his attention that Richard Dawkins in his book "The Blind Watchmaker" had made the assertion that Darwin made it possible to be an intellectually fulfilled atheist. My question to you is it's true that Dawkins' observation along those lines doesn't mean that evolutionary theory is a religious theory, is that correct?

A. That's correct.

Q. And he's engaged in what's sometimes called metaphysical extrapolation, is that correct?

A. I don't see in that statement that he's giving metaphysical extrapolation. The quote that you have is one that's commonly quoted, makes it possible to be an intellectual fulfilled atheist, so that's simply saying something about his own comfort.

Q. I understand.

A. So it's not as though he's saying this proves atheism or something of that sort. It allows one this state of mind.

Q. In your opinion is atheism a scientific theory?

A. No, it's not.

Q. And Dawkins' observation doesn't make evolution a non-scientific theory?

A. That's right. He's not saying that this is something that is part of the contents of the theory at all.

Q. And that assertion on Richard Dawkins' part is not a scientific assertion?

A. The assertion there is not saying something about the content of the view qua scientist, that's right.

Q. And when you look at Dawkins' statement, it makes it very evident that not everything that comes out of a scientist's mouth is science, correct?

A. That's correct. Sometimes people will speak qua scientist and sometimes they will speak about something from their own personal views.

Q. Now, Ken Miller is a friend with Richard Dawkins, who engaged in this, who made this statement, and Ken Miller as I have told you has testified here in court that he believes God created all things seen and unseen. That association between Miller and Dawkins doesn't make evolution a non-scientific theory, correct?

A. That association and the fact that they are friends?

Q. Yes.

A. No, I think one should be friendly as possible with people of all beliefs.

Q. Sure. And the fact that one of Dr. Miller's friends has engaged in a non-scientific statement about his view concerning the possible implications of evolutionary theory doesn't mean that Ken Miller isn't engaged in science, correct?

A. The fact that he's referring to conversations you're saying with Dawkins? No.

Q. Connections with religious organizations don't make a scientific theory non-scientific, correct?

A. Connections of the theory to a --

Q. No. Connections of a given individual who proposes a given theory with a religious organization don't make a scientific theory non-scientific, do they?

A. Unless it's something where the theory is, includes the content of this, but the mere association does not.

Q. So, for example, Ken Miller indicated to the court that he's a Roman Catholic. That doesn't mean because he's affiliated with the Catholic Church that evolutionary theory is a non-scientific theory, correct?

A. That's right. What one looks to is the statements about the theory itself. What is its substantive comment. So my commence here with regard to intelligent design had to do with the contents of view, statements like that of Nancy Pearcey, who says that what intelligent design allows one to do is in her view sit in what you call it the supernaturalist's chair. You can sit in the naturalist's chair. She said the design theory lets, demonstrates that the Christian can sit in the supernaturalist's chair, and she says it lets one in one's professional life see the cosmos through the lens of a comprehensive biblical world view. So that's content of the theory, the content of what design is. But that's different from whether one is a member of a particular church or something.

Q. And I understand that Nancy Pearcey is entitled to her opinion as to what the benefits of intelligent design theory are, just as Richard Dawkins is entitled to his opinion concerning the benefits of evolutionary theory. But that's their opinion, correct?

A. The difference there is that Nancy Pearcey, as one of the authors of "Pandas," and describing in this case, this is in her later book "Total Truth" where she's saying here's what intelligent design is, it's something that demonstrates the objective truth of Christianity, restores it to genuine knowledge, she's telling us something about the content of intelligent design, as a leader of the movement describing its substance.

Q. So but Richard Dawkins is not a leader of the evolutionary movement?

A. He's a scientist. It's hard to think of the evolutionary movement as just a bunch of scientists who are investigating the world.

Q. Sure. Well, a lot of intelligent design people think that it's hard to think of an intelligent design movement.

A. They explicitly talk about their movement. That's actually language they use very often.

Q. Are you familiar with evolutionary theory being discussed as a big tent theory?

A. As a big ten theory?

Q. Yes.

A. I have not heard that, although I'm a member of a Big Ten school. I think I ought to know that, I'm sorry.

Q. Forgive me if I was unclear. I said big tent theory?

A. Oh, big tent. All right, you can see that --

Q. I know you're in the Big Ten. I'm in Michigan, too?

A. Football. A big tent theory, yes. Yes, indeed, I do know that.

Q. I live in Michigan, so I'm introduced to the Big Ten. Are you familiar with that usage that evolutionary theory is a big tent theory?

A. Yes, indeed. That's a very common usage.

Q. So it encompasses a range of positions on a variety of issues, including for example common descent. Is that correct, Dr. Pennock?

A. That's right, among a variety of positions, yes.

Q. You testified that a characteristic of modern science is a commitment to what's called methodological naturalism, is that correct?

A. Yes.

Q. It's also true though that scientific progress has been made prior to, what shall we say, what we think of as modern science, isn't that correct?

A. If you're saying in terms of whether we made scientific discoveries, things that we would regard as empirical discoveries of that nature before the scientific revolution, certainly so, my examples from Hippocrates and others that comes before that period, but we still sort of recognize that as the making use of methodological naturalism.

Q. So scientific progress has been made before what we characterize as modern science with its commitment to methodological naturalism, isn't that correct, Dr. Pennock?

A. As I tried to say, the term methodological naturalism is one of these philosophical long terms that scientists themselves may never have heard of. So the important thing is whether in their practice, in their method they're actually following it or not, and what I was trying to explain is that this notion that we're identifying now with methodological naturalism in fact can be found in an early form even in the early Greeks. So I wouldn't say that it's sort of before science. In that sense they are sort of performing what we would now think of as science to the extent that they're making use of that method.

Q. Let me ask you this. I mean, things such as gravity, that was once thought of as an occult force, correct?

A. Exactly. This was something where it was actually sometimes described as spooky action at a distance, and the change that happened there was to reconceptualize it as a natural property, see it as something that was a law of nature in the same way that other laws are, and to treat it as something to be experimented upon, investigated in the normal ways, under the normal constraints of methodological naturalism, and essentially what that does is take it out of the realm of the occult and see it as a natural sort of thing.

Q. Right, and that's what Newton did. He I believe the term that you used which is useful is explicate. He explicated. Is that correct. or am I misunderstanding?

A. Explication is what philosophers do in trying to take a notion, a concept in its form within a practice and to try to make it systematic and rigorous. So Newton himself would not be doing explication. Newton is doing research as a scientist. Newton is one of those transitional figures where we now of course cite him for the scientific work, but we also leave aside those aspects that were unscientific.

Q. And the result of his work was to take a force previously thought to be occult and I believe as you have testified to bring it into the natural world, the natural causal world, is that correct?

A. That's to say what he did was treat something under the constraints of methodological naturalism to say we'll view this and see it no longer as supernatural, no longer as breaking the laws of nature, but actually as a law of nature itself.

Q. Isn't it true that in his day Newton was thought to have departed from naturalism?

A. I'm sorry, can you say that again?

Q. Isn't it true in his day Newton was thought to have departed from the law of naturalism?

A. As I said, this is something where Newton himself is a transitional figure, and I don't know if something specific in that day where there was a discussion with regard to that. Newton himself was very straightforward that in his rules of reasoning he says we shouldn't introduce superfluous causes. He talks about explaining things in terms of philosophy by which he means natural philosophy or what he calls now science rather than bringing in the divine. So with regard to his scientific work we now take his scientific work, I don't think there's a departure from methodological naturalism.

Q. Didn't Leibniz criticize Newton for departing from naturalism?

A. Leibniz and Newton were at loggerheads as for a number of reasons. Each thought that they were the origin, the originator of the calculus or fluctions, and so they were not friends with regard to things. Certainly that's right, Leibniz criticized some of Newton's arguments on a number of points.

Q. And you're aware of the hypothesis that intelligence is an emergent property of matter, correct?

A. That would be viewing intelligence in the ordinary science, scientific sense, under the constraints of methodological naturalism and treating it like any other property.

Q. So you regard that as a natural claim?

A. If viewed in that way, then that would be an example of design understood, as I was trying to give examples of the way archaeologists use it, it's treating it in the ordinary sense the natural sense of design. Someone, some person like us did something.

Q. Isn't it true that as we sit here today scientists are investigating what some people call psychic powers?

A. I know that there are a few scientists who did that I believe. Mack is one name, someone who's done this. So there are a few scientists who have done that, that's right, and what they do in that case is really the same thing. It's often misunderstood to think, to call something paranormal means that it is supernatural. Essentially what's going on in those scientific investigations is to say no, that's not so. We will again treat this purported phenomenon, ESP or telekinesis for example, as though this is a natural, still yet unknown, but ordinary causal process, treating it essentially in the same way we treat other things under the constraints of methodological naturalism, reconceptualizing it as a natural thing rather than a supernatural.

Q. And that's more or less what Newton did, right? He took something that was occult or not normal and he studied it and brought it from the supernatural or paranormal to the natural world by virtue of his theory, correct?

A. It's a little misleading to say he took it from supernatural and brought it in. I mean, essentially what is going on is reconceiving something that we thought was supernatural we now realize isn't. That's different from making a claim this is the supernatural. That's departing, that would be to depart from methodological naturalism.

Q. Let me ask you this. There are scientists investigating as you said telekinetic powers. Those scientists perform experiments, don't they?

A. I know of some experiments related to attempts to study this. It's always a question as to whether in fact it's a real phenomenon, but there are some attempts to do that, and again it's done by treating it as though it is a natural phenomenon.

Q. And that's what Newton did with gravity, correct?

A. That's right. Newton essentially says gravity is a natural property.

Q. So gravity was thought to be an occult force, and Newton said, "I think it's natural," correct?

A. That would be one way of putting it, yes.

Q. Are you familiar with the philosopher Jerry Fodor, and forgive me if I mispronounced his name, F-O-D-O-R?

A. Yes.

Q. Are you familiar with the philosopher Saul Kripke?

A. Saul Kripke? Yes.

Q. Isn't it true that Fodor argues that mind cannot be explained in terms of evolutionary naturalism?

A. I don't know Fodor's work specifically with regard to that point. If you could say a little bit something where he's coming from on that.

Q. No, if you don't know that's fine. How about Saul Kripke, isn't it true that Saul Kripke argues that mind cannot be explained by evolutionary naturalism? Are you familiar with his work?

A. Again I don't know any specific thing where he's claiming that this is something that departs from science.

Q. Isn't it true that Fodor argues that scientists have failed to establish clear physical criteria for saying that someone is in a particular mental state?

A. That's a claim that I do know that Fodor has made. It has to do with establishing the direct connections between these. It's not something that departs from the rules of science. It simply says here's an unanswered question, we don't yet have an answer from that.

Q. And isn't it true that Kripke likewise argues that scientists have failed to establish clear physical criteria for identifying a particular mental state?

A. Yes. Kripke is writing quite a few decades back, and again the same point is true, science is quite clear we have not yet been able to do this. There are lots of those open questions where we don't have an answer to it, but that's something I would agree with as well. We don't yet have an answer to that.

Q. You're familiar with the work of Gregor Mendel?

A. Yes.

Q. And what is his status in the history of science?

A. Mendel is important as we think of as the founder of genetics. It was Mendel who was the investigator of factors that determine traits. He was working with peas, beans, and postulated factors which would produce the patterns that were seen in differential colors for example in peas or short and long stem lengths. So Mendel 's laws we speak of have to do with basic features of the genetic mechanism.

Q. And isn't it true that Mendel's paper on genetic theory was rejected for publication by the German botanist Karl Von Nageli , if that's the proper pronouncing, which I doubt. It's spelled N-A-G-E-L-I. Isn't that true?

A. I don't know about that. It was eventually published in a regular scientific journal.

Q. And Mendel's theory was lost for forty years between the time he submitted it for publication initially and the time it was, his work was rediscovered, correct?

A. Right. This was one of the examples where science re-finds something that had been known before those genetic laws were rediscovered independently three times by scientists essentially at the same time who then all looked back into the literature and found Mendel's work and gave him credit for that.

Q. Now, Von Nageli, the man who rejected Mendel's article for publication, did so because Mendel was an anti-evolutionist, correct?

A. I'd be surprised if an editor would tell somebody that it's rejected because they're an evolutionist in particular because at that point this is the same time that Darwin's work is getting underway. So those things had not yet even come together. I don't know the details of this. If there's a letter to that effect I'd be interesting in seeing it.

Q. Von Nageli regarded Mendel as a creationist, didn't he?

A. I'm not aware of that.

Q. Okay. You said that Mendel, we regard him as the father of modern genetics.

A. We think of him as the pioneer of this, that's right.

Q. And modern genetics is one of mainstays of the so-called neo-Darwinian synthesis, correct?

A. Part of what Mendel's work did was show how it is that the genetic mechanism works in early form. Obviously we've learned much more since then, so we don't talk about Mendel's theory when we're talking about genetics except as sort of a tip of the hat to a progenitor. And so yes, we think of Mendel as the founder of that.

Q. Dr. Pennock, isn't it true that there's not agreement among philosophers of science concerning the validity of methodological naturalism?

A. The term methodological naturalism is fairly straightforward in the literature. There have been criticisms of it from people like Del Ratzsch from discussions specifically of this debate. So there's some who have taken up a sympathetic position to the intelligent design folks and tried to argue that we could dispense with this.

Q. Dell Ratzsch is a philosopher of science, correct?

A. He's a philosopher of science at Calvin College.

Q. And one of the exhibits today featured a disagreement between Dell Ratzsch and Phil Johnson, correct?

A. That was the review that I quoted where Johnson is reviewing Ratzsch's book.

Q. That's correct.

A. I don't think of it as a dispute. He's actually dispositive with regard to, pretty much with regard to the article, with regard to the book.

Q. Is it your opinion that Dell Ratzsch is an intelligent design creationist?

A. Ratzsch himself, I don't know his position on this. I haven't talked with him in regard to that.

Q. Isn't it true that initially some scientists resisted the Big Bang because of its consistency with Christian religious beliefs?

A. Some people rejected it because of its connection to Christian religious beliefs? I know that there were those such as Eddington, who was one of the early scientists to look at this and investigate it scientifically, that he had troubles with it philosophically. It's hard to say that he did because he was, I'm not sure how you put it, because of its agreement with Christian beliefs.

Q. Consistency.

A. Consistency? That would be strange to say that because Eddington himself was a Christian, was a Quaker, so I don't see that as something that would have been the basis of this.

Q. So it's your testimony here today that the Big Bang theory did not encounter resistance from persons who opposed it because of its consistency with Christian beliefs?

A. No. There may very well be some who rejected it on that grounds.

Q. In fact, initially that theory was received very skeptically by some for that reason, correct?

A. I would not be surprised to find people who gave that as a reason for their own initial skepticism. And there's also of course scientific objections to it at the time.

Q. The Big Bang theory is currently the dominant theory in that area, correct?

A. Yes, that's right.

Q. So those scientific objections were overcome, correct?

A. That's correct.

Q. In fact, Einstein tinkered with his equations to avoid tailoring his equations and his theory to the reality of an expanding universe, correct?

A. When you say tinkered with, what he was doing was taking into account what was known and trying to work into his general theory. He was attempting to come up with a very general view, a constant, a cosmological constant to make the equations work, make them fit with the evidence.

Q. It's evident today that you published two books that have to do what you call intelligent design creationism. I trust you have no objection to your books being in the library of Dover High School?

A. I actually had someone call me and offer to donate sixty copies to the library, and my reply was I'd be happy for him to do that, but I thought that he should really include sixty different books, which would be easy to come by, and happy that mine would be amongst them. I should have just taken him up on the offer though.

Q. You're familiar with the French chemist Lavoisier? Did I say that correctly?

A. Lavoisier, yes. I can't say that in French either.

Q. I'll spell that for you after the session. Isn't it true that he called for a scientific revolution in the area of his inquiry, self consciously called for a scientific revolution?

A. With regard to chemistry, that's right.

Q. By that he meant a reinterpretation of knowledge in that area as it had been known to that time, correct?

A. This is something within the discipline of chemistry that would have been regarded as a significant change in basic assumptions. So that's right, it's not something that was a challenge to science itself. It was a challenge to some specific chemical presuppositions.

Q. When you say challenge to science itself, you mean science as characterized by a commitment to methodologi cal naturalism?

A. That's right. There's nothing in Lavoisier's revolution, the chemical revolution, that was at all a challenge to the basic methods of science.

Q. And you're familiar with what is termed the Copernican Revolution?

A. Yes.

Q. And that consisted in a radical re-thinking of theory of universe, shifting it from a geocentric theory to a heliocentric theory, correct?

A. That's right. Historians now more credit Kepler with that and talk we should say, we should really say it's a Keplerian revolution because it was Kepler who was more detailed in being able to establish the laws, orbital laws and so on and how those work, but yes, we do credit Copernicus as well with shifting our perspective with regard to is center. Again neither of those is a change in the methods of science itself. It's accepting those and giving a different physical account of the world.

Q. And again when you say that, you mean it doesn't pose a challenge to the convention of methodological naturalism, correct?

A. That's right.

Q. Your claim concerning these views that intelligent design focuses on natural selection is based on, and that's not an accurate characterization of the intelligent design position, is based on your opinion concerning who belongs in the intelligent design camp, correct?

A. What I have done throughout my research is to read the full range of proponents, focusing most upon the key leaders of the movement, but also more broadly and understand them in their own terms, the way in which the literature, the intelligent design literature is presented.

Q. And I do understand that you have conducted research, but that research provides the basis for the opinion you have offered here today, correct?

A. That's right.

Q. Do you know whether Dr. Behe accepts common descent?

A. Behe has said a number of things with regard to common descent. In his book, in fact he's usually described as someone who accepts it, but when you look specifically at what he said, he's always very careful in his wording and says thing like "I have no particular reason to doubt it," something of that sort, leaving himself a little bit of wiggle room with regard to whether he actually accepts it or not or is just agnostic with regard to it.

Q. Is it your opinion that Dr. Behe rejects common descent?

A. I would like to know his specific direct view on that. I have asked him and Dembski sometimes direct questions and have been unable to get direct answers with regard to those.

Q. So you don't know whether Dr. Behe rejects common descent?

A. I know what he has said, and he has said, "I have no particular reason to reject it."

Q. I want to ask you a few questions about your work in the computer science area and Evita. You testified that in your opinion that Evita is an artificial life system designed to test evolutionary hypotheses, correct?

A. That's correct.

Q. And that's the scope of your testimony here today. You said the same thing, correct?

A. That's correct.

Q. And you said today and I believe in your opinion that it's designed to instantiate Darwin's law, correct?

A. That's correct. By instantiate, just so that I this kind of explain this sort of philosophical term, the difference here is between a simulation of something and an actual instance of it. That's to say a realization of it. In the Evita system we're not simulating evolution. Evolution is actually happening. It's the very mechanisms of evolution itself as Darwin discovered them. The organisms actually do self replicate. They do randomly vary the code changes. The mutations happen at random. There is competition and actual natural selection. So these are not being simulated. Those processes are actually happening. So that's the sense in which it's an instance of evolution, not just a simulation.

Q. And to make sure I understand, it seems you're saying that the instantiation makes it a more perfect model of Darwinian law of natural selection, is that correct?

A. What I'm saying is it's an actual example of it, that what we have in the system our organisms, Evitians, have the very properties that the Darwinian mechanism discusses. So it's not a simulation of replication. They are actually self replicating. It's not a simulation of a random mutation. That's what's going on with the code. It's not a simulation of natural selection. They do compete and are naturally selected, without intervention, without design.

Q. And Mr. Rothschild asked you and I believe you testified that the program doesn't address the question of origins, but rather the process of Darwin's law, it's working out in the computer program organisms, correct?

A. It doesn't deal with the origins of life. It deals with the evolution of complexity of adaptations. So origins can sometimes be used in both ways. So what's relevant here is it's not about the origin of life. It's about the origin of complex traits.

Q. And I believe you said that the overall purpose of the project is to test how evolution actually works, is that correct?

A. That's right. What we're able to do in the system is put forward an evolutionary hypothesis and then set up a controlled experiment and let the system evolve with replications, as many are as needed, and in some cases you might have fifty different populations replicating in a controlled situation, fifty in an experimental situation, so that you can then watch what happens in each case and observe evolution, the Darwinian process, do its stuff.

Q. Now, if someone looked at a computer program, I think you have said that it was written by a particular individual called the, what did you call it, the genesis program or the --

A. No, the Ancestor.

Q. Ancestor program, forgive me. They would look at that and immediately know that was done by a computer programmer, correct?

A. Not necessarily at all. In fact, one can look at these things and not know which things were coded by a programmer and which things were evolved. We know because we put them in there this was the one that we coded, but if one were to just look at them, you wouldn't necessarily be able to tell at all.

Q. So is it your testimony that if someone happened to cross that computer program, they wouldn't know that someone had designed it?

A. That's right. You would not be able to pick out the ones that were evolved from those that Charles Ofria hand coded as the Ancestor. As I said, what the Ancestor does is simply replicate it. It's a very basic program. Most of it is just blank code, and as the organisms evolve it can actually turn out that they lose the ability to replicate. Some mutations are harmful.

Many are. Most are, or neutral. It might make no difference. Some mutations can actually make them better replicators, and if it turns out that random mutations replicates better than another organism, that means that in the competition, in the digital environment, those will be naturally selected. So what you'll have over time is the evolution of for example faster replicators. That is they figure out a way to replicate faster than the original programmer programmed in.

Or it could turn out that they'll be worse, and those will then lose out in the competition. So what you see is the evolutionary process, random mutations to the code, being naturally selected for and generation after generation organisms evolving, in this case better replication ability. Or, and this is the other thing that's characteristic about Evita, it can evolve the ability to perform complex logical operations, and in this case again it's not something that was programmed in at all.

The original Ancestor could do none of that, but what one sees at the end are organisms that have evolved these complex abilities. The code has changed. It's acquired an ability that it did not have before. And that's what we're able to see, something we know that was designed at the beginning but couldn't do any of this stuff to something at the end that has evolved so it's quite complex.

The set of instructions has to be executed in a specific order to produce a particular function. That's something we can look at and say how did it do it, and often they're very clever, they evolve things where the programmer would think why, I would never have thought even to do it that way. And that's what allows this to be a nice model for examining how evolution can produce complex functional adaptations.

Q. Sure.

A. If you have it, and the other thing about it is -- sorry, I get excited about this. We can trace, we can keep track of the full evolutionary history. So we have a complete fossil record if you will. So after we've see that it's evolved something we can look back and look, it's a mutation by random mutation of how that evolved.

Q. Sure, and forgive me if my question was imprecise. I didn't want to cut you off, but my question is a little different than one you've answered at least as I see it, not technical, which is this. I'm not asking about the difference between the organisms you're looking at. I'm saying if someone came across that computer program, the Ancestor program, wouldn't they believe it was designed?

A. And my answer is that you really can't say that. You might believe it and you'd be wrong. You can't tell the difference between the one that was encoded and one that was evolved later on.

Q. So it's your testimony that someone could believe the computer program was not designed?

A. You're asking a psychological question about what someone could believe, is that right? In that case they could believe all sorts of things, but the question has to do with can you look at them and tell this was one that was designed, and the answer there is no, not necessarily.

Q. Let's use your definition and let's constrict causality to the natural world and I'll ask you the question again. If someone like myself wandered down to Michigan State University and came across your computer system generating this pattern that you have described in great detail which is designed to substantiate Darwinian mechanism, is it your testimony or do you have an opinion concerning whether someone like me would think that was designed or not?

A. Someone might think it was. You might look at it and you might say wow, that looks pretty complicated, how could that have happened. You might think this is so amazingly functional and interrelated, it's irreducibly complex, it had to have been designed by someone, and you'd be wrong.

Q. So I would be wrong if I inferred that that computer program has been designed by a computer programmer?

A. That's right. You'd be wrong about that. The ones that emerged at the end of the evolutionary process have specific code that lets them do specific adaptive functions, and that was not programmed in.

Q. Would I be wrong if I inferred that the computer program had been created by a supernatural force?

A. If you were to conclude this just as a theological position or as a scientific position?

Q. If I were to conclude it in any way.

A. So again, and this is a nice example to sort of show the difference between thinking about this as a scientist under methodological naturalism versus the intelligent design notion of opening our minds to the possibility, what I have said here is that the organisms at the end weren't designed. We didn't have a hand in doing that. They evolved. Someone who says well, we have to consider the possibility of supernatural interventions might say well, you know, God was in there or some supernatural designer was in there changing the bits inside the computer.

Well, you know, we don't know if that's true, and no scientist can ever know if that's true. That's not a testable proposition. So in that sense we can never rule that out. That's part of what it means to be a methodological naturalist. So we're neutral with regard to that. Our conclusion that there was no design is one based upon methodological naturalism, namely we're assuming that this is working through ordinary laws, that there aren't any interventions that breaking laws. We know that we didn't do it, and that's what we can say as scientists. If God or some supernatural being is in there fiddling with the gates, the logic gates such that there really was design, we don't have any way of testing that.

Q. Dr. Pennock, you testified that if someone were to reject, if the intelligent design theorists or intelligent design creationists as you call them were to succeed, modern science would be knocked backward. Is that your testimony today?

A. That's right. It would be a return to this earlier pre-scientific notion.

Q. Are you familiar with the work of Dr. Scott Mennick?

A. I am familiar with him. I have met him and talked with him.

Q. Do you know whether he's engaged in scientific research?

A. I believe he is.

Q. Do you know whether he is a proponent of intelligent design?

A. He is.

Q. I believe that you have testified today that in your opinion as an expert, intelligent design is creationism.

A. That's correct.

Q. And that's based on your research and your, the application of your training to the database that you have used for that research, is that correct?

A. That's right.

Q. And your expert credentials are those that were listed on your CV, is that correct?

A. Yes.

Q. You testified about young earth creationists. Is it your opinion that that's not science?

A. That's correct.

Q. Are you familiar with the work of Larry Laudan, L-A-U-D-A-N?

A. Yes, Larry Laudan was a philosopher of science who actually has been a previous professor at the university where I did my work.

Q. And Larry Laudan said he believes that creationism is science, it's just bad science, correct?

A. You're referring to a particular article that Laudan wrote that Michael Ruse included in his anthology on creation science movement in the early 80's, and in that case Laudan is making arguments that creation science should be allowed to be science in that he says it's offering a claim that could be proved, but that is found to be false such as the age of the earth, because we know that that's not true. So in that sense he says this is something that is bad science.

If one were to put that forward as though it were science, that would be wrong, it's bad science. But he said we can allow that as science. Now, he does that under the assumption that we're judging this under the kinds of rules that I'm mentioning, to say that we're judging that the young earth hypothesis, let's say that the earth is ten thousand years old is false, and that we have disconfirmed that. That disconfirmation is done by assuming that we can judge it under the rule of methodological naturalism.

That's to say that we're taking our ordinary notion and not allowing supernatural intervention. If we were to allow it, then we would not be able to say that this is something that has been disconfirmed. That's to say if you take seriously the content that departs from scientific method and at that part, point, you'd be wrong to say that it's just bad science. At that point you'd just say it's not science.

So this is always the sort of a subtle point that's important to try to get across, and let me try to put it this way, right? It's often complained by creationists that they say oh, you know, you're saying that we can't be falsified, and yet at the same time you're saying that we are falsified. Gosh, isn't that a contradiction? And that's just a misunderstanding, right?

The claim that it can't be falsified is the claim that it can't be falsified if one is departing from methodological naturalism. That is to say if you treat this as just an ordinary scientific hypothesis, then you'd say well, we projected that the earth is ten thousand years old. But if you depart from it and take seriously the supernatural content, then you can't say that anymore, because at that point who knows?

Young earth creationists, some of them have said well, the world looks old, but it looks old because God made it old, that really it is six thousand years old but he made it so that it appears to be much longer, did much, much earlier. Well, that's sort of a deceptive view about the way things were created. But if you take that view that it's possible to say that the supernatural being is deceiving us in this way, then there's no way to say that we've disconfirmed that.

For all we know the world may have been created five minutes ago and we've just been implanted with memories to make us think it that it's much longer, right? There's no way to disprove that. If you seriously take the supernatural possibility, then you can't disconfirm it. So that's the sense in which it's important to say under the assumption of methodological naturalism, we have disconfirmed it, it's bad science, that's what Laudan is talking about, but if you were to take seriously the non-natural part, that's to say rejecting scientific method, then it's just not science, and we can't say that we have rejected it. So there's always these two different hypotheses. You've got to keep them distinct. There's no contradiction.

MR. GILLEN: Thank you, Your Honor. I have no further questions.

THE COURT: Thank you, Mr. Gillen. Redirect by Mr. Rothschild?

MR. ROTHSCHILD: Just a few questions, Your Honor.

REDIRECT MR. ROTHSCHILD:

Q. Hello again, Dr. Pennock. Early in your cross examination Mr. Gillen brought up the subject of Newton and suggested that there have been supernatural explanations for action at a distance, I think you called it spooky action at a distance, but that Newton took that supernatural proposition and came up with a natural explanation, is that correct?

A. That's right. Essentially it's a reconceptualization of what was taken to be supernatural and saying oh, no, it's not really supernatural, we're not even going to think of it in that way, we'll think of it under the constraints of methodological naturalism and treat it as a natural hypothesis and then treat it as such.

Q. And your example of epilepsy with Hippocrates, a similar phenomenon, we had a supernatural or spiritual explanation and Hippocrates said no we can come up with a natural explanation?

A. Exactly. And again one remains neutral metaphysically about whether or not there is some divine basis for this. That's just something that's outside of science. It's what one is doing within science as saying this is just a natural explanation, that's what we’re getting.

Q. Is intelligent design making the same kind of transition?

A. Explicitly not. Their basic goal and proposition is to change the ground rules. They want the supernatural to be introduced as you know Nancy Pearcey has said, this lets us as professionals, intelligent design demonstrates that Christians as professionals can sit in the supernaturalist's chair. She's not saying that we can say what we thought was supernatural is natural. No, this is meant to be substantive, it's meant to be a rejection of the basis of science.

Q. Dr. Pennock, isn't intelligent design in fact doing the exact opposite as Newton, taking a natural phenomenon for which we have natural explanation and arguing that we have to replace it with a supernatural explanation?

A. Exactly, in the sense that the kinds of examples that they give of design inferences, every single one of them is a natural notion of design. No one has any objection to those, but those are done under ordinary constraints within science, and we can give evidence and test those, which we do all the time. They're wanting to reject that notion such that even ordinary cases wind up being quite extraordinary.

Q. And in the case of the theory of evolution we have a natural explanation?

A. We can see it happen.

Q. And they want to displace it with a supernatural explanation?

A. Exactly.

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

THE COURT: Recross.

RECROSS BY MR. GILLEN:

Q. Dr. Pennock, it's your opinion that we have a natural explanation for the origin of life?

A. I haven't said something about the origin of life. I think science does not yet have an explanation of the origin of life. It's a topic of research. People are working on it. One of my colleagues at Lyman Briggs is part of a project that is actually looking at a new method for how one can have an explanation of that. We'll see whether that pans out or not. So there's real research going on, but that's not part of the Darwinian theory. Darwin has set aside that question. The question is the origin of species, the origin of adaptations, of complexity and so on, and that's where we can say we have an explanation.

Q. Do you have an understanding concerning whether intelligent design theory as I call it, intelligent design creationism, is usually what speaks to the origin of life?

A. In some of their literature they have used origin of life explicitly as an example of something that cannot be explained naturally. Stephen Meyer for example often uses that in his talks. Others have as well. Sometimes though the focus is on things other than the origin of life.

Q. And there are philosophers of science who believe that mind cannot be understood in terms of evolutionary naturalism, correct?

A. The question is whether science has been able to explain this in natural terms.

Q. No, the question is whether there are philosophers of science who believe that mind cannot be explained in terms of evolutionary naturalism.

A. If we're talking about philosophers, then that's certainly true. There are some philosophers who will consider the matrix hypothesis as well that life was created five minutes ago. So yes, indeed, we have lots of discussions about that within philosophy.

MR. GILLEN: No further questions, Your Honor.

THE COURT: All right. You may step down, Dr. Pennock, thank you. Our exhibits then for Dr. Pennock are as follows. We have P-319, which is the CV for Dr. Pennock. Any objection?

MR. GILLEN: No objection.

THE COURT: That's admitted. 339 is the "Tower of Babel" book as indicated by, or as discussed by Dr. Pennock during his testimony. Are you seeking to introduce the entire book?

MR. ROTHSCHILD: We are, Your Honor.

THE COURT: Objection?

MR. GILLEN: No objection.

THE COURT: That's admitted. P-627 is the book "Intelligent Design Creationism," I'm abbreviating that title I believe. But are you seeking to admit the entire volume or not?

MR. ROTHSCHILD: We're not going to move that into evidence.

THE COURT: All right, that's not admitted. The nature article is P-330. What's your pleasure with that, Mr. Rothschild?

MR. ROTHSCHILD: We'd like to move that into evidence.

MR. GILLEN: No objection, Your Honor.

THE COURT: That is admitted. 343 is the book "The Design Revolution."

MR. ROTHSCHILD: We'd like to move that into evidence.

THE COURT: Any objection?

MR. GILLEN: We have no objection.

THE COURT: That is admitted then, P-343. P-341, another book, "Intelligent Design," you're pleasure on that?

MR. ROTHSCHILD: We'd like to move that into evidence, Your Honor.

MR. GILLEN: No objection, Your Honor.

THE COURT: That's admitted. The Dembski article is P-359.

MR. ROTHSCHILD: We'd like to move that into evidence, Your Honor.

MR. GILLEN: No objection, Your Honor.

THE COURT: That's admitted. The expert report is P-602.

MR. ROTHSCHILD: We are not moving that into evidence.

THE COURT: I assume that, that's not admitted. Separate article, separate Dembski article is P-323.

MR. ROTHSCHILD: We're moving that into evidence, Your Honor.

MR. GILLEN: We have no objection.

THE COURT: That's admitted. P-338 is the Christianity Today article.

MR. ROTHSCHILD: We are moving that into evidence, Your Honor.

MR. GILLEN: No objection.

THE COURT: That's admitted. The Meyer article is P-332.

MR. ROTHSCHILD: We are moving that into evidence.

MR. GILLEN: No objection.

THE COURT: All right, that's admitted. And the Ratzsch article is P-328.

MR. ROTHSCHILD: We are moving that into evidence.

MR. GILLEN: And I have no objection.

THE COURT: And that's admitted. I have no exhibits, no new exhibits by Mr. Gillen during his cross. Is that correct, Mr. Gillen?

MR. GILLEN: That's correct, Your Honor.

THE COURT: Any other exhibits that I have missed?

MR. ROTHSCHILD: No, Your Honor.

THE COURT: All right. Let me have counsel approach, please?

(Side bar at 11:48 a.m.)

THE COURT: It's ten of 12:00, and what have you heard from Mr. Benn?

MR. WALCZAK: He will be here at 1:15. The reporters will be here with them, and I advised him that Your Honor would give him an opportunity to make whatever arguments he wants to make at that time, and at that time we'd go from there.

THE COURT: Well, my intention would be to meet in chambers with all counsel, not the reporters, and then have a discussion and see precisely where we are. I think there's it's appropriate for you not to try to paraphrase what Mr. Benn's exact position is.

MR. WALCZAK: I have a hard enough time making my own arguments.

THE COURT: But given that, I guess the question is should we start with another witness now or should adjourn and come back at 1:15?

MR. HARVEY: I think we should adjourn. The next witness is going to be Steve Stough. He's going to be I would say approximately 45 minutes to an hour maybe.

THE COURT: So it seems to make little sense to -- are you all right with that?

MR. GILLEN: Yes, certainly.

THE COURT: All right. Why don't we do that then. Let's break and we'll come back roughly, why don't you assemble in chambers. I’ll let you all find Mr. Benn when he gets here and yank him into chambers and we'll have that discussion, and then my intention is if in fact the answer is in the negative, I guess we're going to have to have a proceeding in open court with respect to the reporters to see where that goes at this point. You do not know whether it's his intention at this point, you don't know the reporters' intentions with respect to whether they would indicated that they'd testify? That seems rather counterintuitive.

MR. WALCZAK: My best information is that he will not.

THE COURT: That would make sense. That would be more consistent than if they would show up and they say won't testify, and I frankly will have to ask for an understanding --

MR. WALCZAK: I think they will say their names and then they will refuse to answer questions in both their alleged First Amendment --

THE COURT: No rank, no serial number?

MR. HARVEY: Your Honor, I want to give you a heads up on something else that's coming up this afternoon. Probably not at momentous as this. This afternoon we're going to call Steve Stough, who read a number of the -- he only knows what he read in the paper, and so we're going to do again what we did yesterday, which is attempt to introduce the article.

THE COURT: You mean he really only knows what he read in the paper?

MR. WALCZAK: He didn't attend --

MR. HARVEY: He didn't attend the meetings. So and then in addition we're going to --

THE COURT: What's the purpose of Mr. Stough?

MR. HARVEY: The purpose of Mr. Stough is to testify about the harm to him, his perception of the Dover school district's public statement that was published, but also to testify about what he learned through the paper at the time, because we think it's relevant to the effect on the community and the endorsement test.

THE COURT: Well, they have an objection, and I haven't ruled on whether or not the contents of the papers are admissible for the purpose of the effect portion, and you're forewarned that I might not allow that. You know, that compels me to decide that objection, and if I have to do it this afternoon I may not allow it as it goes to --

MR. WALCZAK: Even for a non-hearsay purpose, this is clearly for --

MR. GILLEN: It's not clearly for any such purpose, Your Honor.

THE COURT: Well, I think it's an attempt to introduce it for that purpose.

MR. GILLEN: Yes.

THE COURT: Your argument is that it's not clearly for that purpose, and I understand that argument. I think this is a complicated question and, you know, we'll rule as we must if you bring him in at that point. I think it's difficult, you know, I've made the popular analogy to unringing the bell, I think in a bench trial intellectually I can separate out one from the other, but I'm not so sure I should, and I think that's entirely problematic

Now, you know, if I would not allow that testimony for example, and if for example the determination that I have made with respect to reporters is appealed to the Third Circuit and if the Third Circuit believes that I'm correct, and if the reporters are compelled to testify, and if you get the newspaper articles in through that mechanism, then that I guess would allow you conceivably if I sustain an objection this afternoon to bring this witness back in a rebuttal phase, and I wouldn't prevent you from doing that, but at this stage I have to tell you I don't think it's clear as you believe it to be that I should simply let the newspaper article in on the effect.

And I have to tell you, too, that given the state of jurisprudence on these issues, which is somewhat dicey, and all of you would admit that probably in moments of candor, that to simply state that you introduce it on the effect part of it and it doesn't go to truth I think is problematic, because I think it does wash over the truth, and I think courts are unclear on that point, and I might say that also to further buttress the difficulty you have.

MR. HARVEY: Let me, Judge, just have a couple of other things I think you need to know. One is is that I anticipated that if when I did this with the articles today that you might take it under advisement until later if the reporter issue hadn't been considered, just as we did yesterday, and I was putting a heads up, just I didn't want you to think I was butting heads with you.

THE COURT: No, and to be fair I understand that and I respect that. But you understand it wouldn't be so much that I take it under advisement. It might be that I would sustain the objection, and then you're left with the scenario that I outlined.

MR. HARVEY: I understand. I understand.

THE COURT: So you call it --

MR. HARVEY: Here's a related problem. We intend through Mr. Stough to also seek to lay a foundation for the admissibility of letters to the editor and editorials that were in the Dover papers during the relevant time frame that relate to this issue and as they are related to the endorsement and the endorsement issue.

THE COURT: Why can't you recall him for that purpose? When we see what happens with the reporters why can't you do that?

MR. ROTHSCHILD: The reporters obviously are not the author of these letters anyway, so that isn't going to change with the resolution of the reporters.

MR. WALCZAK: This is a completely non- hearsay issue that all of these articles are self-authenticating is a 9026 --

MR. HARVEY: Letters and editorials.

THE COURT: Well --

MR. WALCZAK: Even those that are coming in not for the truth of what is said, simply is the fact that this is what's out there.

THE COURT: Well, I understand that, Mr. Walczak. But as I just said, I'm not so sure that when you consider the effect problem it doesn't wash over into the truth. I don't think it's as pure as you cast it to be. Now, we're talking about different things. If we're talking about the articles that contain statements, quotations from individuals school board members, I think that's entirely problematic, and I don't necessarily buy into your argument that it self-authenticates for the purpose of the effect on that.

If we're talking about letters to the editor, I think that's something different. If we're talking -- it may be something different. If we're talking about editorials that don't contain quotes, that may be something different.

MR. GILLEN: I can argue it's not, because the effect, if that effect is going to be charged to the defendants, you have to conclude that that's true.

THE COURT: No, I don't know that you do. I think an editorial is something different and a letter is something different than an article that contains a quote, particularly a quote from a school board member on an issue in the case is what was said during the ramp up to the enactment of the policy.

MR. GILLEN: I understand what you're saying, Judge, but from our standpoint Steve Stough, he's going to testify about what he thought when he read a letter to the editor. That's evidence of the effect of a letter to the editor. But just as you said, in order to get that effect and charge it to the defendants, you have to conclude that that letter to the editor is true. Otherwise --

THE COURT: I don't think you do. No, I disagree with that, and I'll hear you further on that. I'm not preventing, my purpose is not to get off the exit ramp here and do an argument that we don't need to get into.

MR. GILLEN: Right.

THE COURT: I understand your argument. I'm not sure that I yet understand your argument, and we'll pursue that further, except that I will tell you preliminarily I might view the letters and editorial as different from the news articles for the reasons I stated. I think you see where I'm going. You really need to be prepared to address that as we reconvene this afternoon with that particular witness. But, you know, to revisit and put a final point, or a finer point on it as it relates to the articles themselves, I would likely sustain an objection as it relates to the articles even on the effect, that's what we're having the reporters come in for this afternoon. We're going to have to see how that plays out.

MR. HARVEY: I understand, Your Honor.

THE COURT: I think the residual, I said this yesterday, I believe this today, the residual exception under 807 entails fairness to them, you know, if they have the opportunity to have it at these reporters, and if you're going to introduce them --

MR. HARVEY: Your Honor, we may do this to preserve our record today, or we may decide to call them another day after some of these issues have been cleared up a little bit. Let me talk to my counsel about that.

THE COURT: But what we have to determine this afternoon as it relates to Mr. Benn if he comes in here is are these reporters in the dock on somebody's request that they be held in contempt. Now, in the first instance it would be you, but I intend to have a colloquy with the reporters if necessary and ask them if they're prepared to testify, and that assumes that you're going to call them to testify. I don't know what you want to do with that. It seems to me that you ought to do that. I can't run your case for you, but to --

MR. GILLEN: To get all wrapped up --

THE COURT: -- put the onus on the defendants only and then you say well, we don't know what we're going to do and they escape the blade from your standpoint, plus if it goes up to the Third Circuit, and I don't know that there's a distinction, but if it goes up to the Third Circuit in depositions only and doesn't go up to the Third Circuit on the testimony of their case in chief, I think that's a very incomplete issue for the Third Circuit to rule on.

I might consider wrapping it up and putting a ribbon on it and sending it out and we'll see what the Third Circuit says at that point. Of course you could otherwise turn, I noted that this morning the lazy lawyers, I don't know if that was directed at the plaintiffs or the defendants in the York Daily Record, would not establish in your case, I would not use that for any of you. Did you see that? The York Daily Record put out a statement indicating that there were lazy lawyers in this case because you were attempting to subpoena the reporters.

MR. WALCZAK: I thought I was nice to her yesterday when I saw that.

THE COURT: All right. Then we'll recess until 1:15 if that works for everybody, and we'll meet in chambers at that time and then I'll rely on you all to get Mr. Benn in. All right?

(Side bar concluded at 12:00 p.m.)

THE COURT: All right. The conversation at side bar I'll note for the members of the public and the press and the parties had to do with scheduling, and we have this procedure that we have agreed on, that we're going to recess at this point for lunch. As has been noted we have an issue that relates to the testimony of two witnesses on behalf of the, called by the plaintiffs.

The testimony would be on behalf of the plaintiffs. We must resolve that preliminarily this afternoon. I will meet with counsel in chambers at 1:15 this afternoon in furtherance of at least attempting to resolve that issue. We'll not spend an extended period of time doing that, but it could take a while. I would say that we will go, we will come back into session likely at approximately 1:45 this afternoon. But that's an estimate.

I would say anywhere after 1:30 likely we would reconvene for the afternoon session, and we will resolve at least temporarily if not permanently the issue of the two witnesses, and then we will proceed with the balance of the, not the balance of but the next witness on behalf of the plaintiffs this afternoon after that matter is dealt with. Anything else from counsel before we break?

MR. ROTHSCHILD: No, Your Honor.

MR. GILLEN: No, Your Honor.

THE COURT: All right. We'll see you all in chambers, we'll see counsel in chambers at 1:15, and we'll be in recess until then.

(End of Volume 1 at 12:02 p.m.)