Thank you very much to Bob OH for pointing me to a transcript of the Behe literature bluff at the Dover trial.Ã‚Â I have read the transcript in detail, and I now believe the Dover defendantsÃ¢â‚¬â„¢ lawyers should have made objections that they did not make.Ã‚Â Here are quotes from the Behe examination followed by the objections that should have been made (in bold):
Ã‚Â Q. But these articles do discuss immune systems that are different from the vertebrate immune system, correct?
Ã‚Â Objection your honor.Ã‚Â Hearsay.Ã‚Â If counsel would, one, lay a Rule 803(18) foundation that the articles to which he refers are authoritative and, two, read the exact portion he would like Professor Behe to comment on into the record, perhaps I will withdraw the objection.Ã‚Â It is improper for him to characterize the articles and then ask the witness to comment on his characterization.Ã‚Â That is not the way a Rule 803(18) impeachment is done.
Q. You said they’re [the articles are] referring to precursors, those precursors are precursors that have immune systems, correct? Just not the kind we have?
A. Well, I don’t think so. Transposons are thought to have arisen from I think bacterial-like elements which do not have immune systems, and so I’m not quite sure how to take your question.
Q. We’ll get back to that. Now, these articles rebut your assertion that scientific literature has no answers on the origin of the vertebrate immune system?
Ã‚Â OBJECTION.Ã‚Â Same objection as in Example 1.
Example 3 (the literature bluff):
Q. Professor Behe, what I have given you has been marked Plaintiff’s Exhibit 743 . . .
Q. And there are fifty-eight articles in here on the evolution of the immune system?
A. Yes. That’s what it seems to say . . .
Q. I’m going to read some titles here. We have Evolution of Immune Reactions by Sima and Vetvicka, are you familiar with that?
A. No, I’m not.
Objection, There is no foundation that this article is authoritative.Ã‚Â References to it are not admissible.
Q. Origin and Evolution of the Vertebrate Immune System, by Pasquier. Evolution and Vertebrate Immunity, by Kelso. The Primordial Vrm System and the Evolution of Vertebrate Immunity, by Stewart. The Phylogenesis of Immune Functions, by Warr. The Evolutionary Mechanisms of Defense Reactions, by Vetvicka. Immunity and Evolution, Marchalonias. Immunology of Animals, by Vetvicka. You need some room here. Can you confirm these are books about the evolution of the immune system?
A. Most of them have evolution or related words in the title, so I can confirm that, but what I strongly doubt is that any of these address the question in a rigorous detailed fashion of how the immune system or irreducibly complex components of it could have arisen by random mutation and natural selection.
Objection, There is no foundation that these articles are authoritative.Ã‚Â References to them prove nothing and are not admissible.
Q. There’s also books on the immune system that have chapters on the evolution of the immune system?
Objection:Ã‚Â Relevance and lack of foundation.Ã‚Â The general proposition that certain books have chapters that discuss the evolution of the immune system has nothing to with this witnessesÃ¢â‚¬â„¢ testimony.Ã‚Â If counsel would like to lay a rule 803(18) foundation, then perhaps he can go forward with this line of questioning.
Q. I’m just going to read these titles, it sounds like you don’t even need to look at them?
A. Please do go ahead and read them.
Q. You’ve got Immune System Accessory Cells, Fornusek and Vetvicka, and that’s got a chapter called “Evolution of Immune Sensory Functions.” You’ve got a book called The Natural History of the Major Histocompatability Complex, that’s part of the immune system, correct?
Q. And here we’ve got chapter called “Evolution.” Then we’ve got Fundamental Immunology, a chapter on the evolution of the immune system.
Objection.Ã‚Â The titles of the chapters are insufficient to lay an 803(18) impeachment foundation.Ã‚Â Counsel needs to show the witness exactly where in these chapters the authors write anything that conflicts with his testimony.
Q. You haven’t read those chapters?
A. No, I haven’t.
Q. You haven’t read the books that I gave you?
A. No, I haven’t. I have read those papers that I presented though yesterday on the immune system.
Q. And the fifty-eight articles, some yes, some no?
Objection.Ã‚Â If he has not read them, there is no Rule 803(18) foundation that they are authoritative.Ã‚Â All references to them should be stricken from the record.
Q. And then all these hard working scientists publish article after article over years and years, chapters and books, full books, addressing the question of how the vertebrate immune system evolved, but none of them are satisfactory to you for an answer to that question?
Objection:Ã‚Â Lack of foundation.Ã‚Â Counsel is testifying.Ã‚Â That is improper.Ã‚Â If he wants to impeach the witness with a leaned treatise, then he must lay a foundation that it is authoritative and then show him the specific portion of the writing that conflicts with his testimony.Ã‚Â
In summary, not only was Judge Jones wrong to rely on the literature bluff in his opinion, the defendantsÃ¢â‚¬â„¢ lawyers should have made the objections set forth above.Ã‚Â There was plenty of blame to go around.
Ã‚Â Another commenter from my prior post gave a baseball analogy:Ã‚Â Ã¢â‚¬Å“Calling the bluff now strikes me as being like the losing manager of last yearÃ¢â‚¬â„¢s world series complaining about his star player who was unfairly obstructed in the bottom of the 6th in game three . . . itÃ¢â‚¬â„¢s a little late for that; the gameÃ¢â‚¬â„¢s been over for a while.Ã¢â‚¬Â
No, I think these issues are still worth discussing.Ã‚Â Let me suggest a baseball analogy of my own.Ã‚Â This discussion is like the manager of last yearÃ¢â‚¬â„¢s losing team lamenting his wrong decision to put a left-handed reliever in in the 7th inning instead of a right-hander.Ã‚Â IÃ¢â‚¬â„¢m going to learn from that mistake, he says to himself, and the next time I will do better.
There will be another ID case.Ã‚Â A person who may be an expert witness in that case reads this blog (itÃ¢â‚¬â„¢s his blog after all).Ã‚Â We must be prepared and not repeat the mistakes made in Dover.Ã‚Â Having worked with experts for nearly 20 years, I feel qualified to give Bill some tips if he is ever called as an expert.Ã‚Â
1.Ã‚Â Never, ever accept an opposing lawyerÃ¢â‚¬â„¢s characterization of anything.Ã‚Â A lawyer may say Ã¢â‚¬Å“This article says thus and so, what do you think about that?Ã¢â‚¬Â Hopefully the lawyer for your side will get up on his hind legs (as lawyers say) and object.Ã‚Â But if he does not, do not fall into the trap that Behe fell into.Ã‚Â The only proper response is, Ã¢â‚¬Å“I have not read that article.Ã‚Â I have no opinion about what it says and I will not comment on it.Ã¢â‚¬ÂÃ‚Â That answer is bulletproof.Ã‚Â Some experts are hesitant to say this, because they think it makes them look less than perfectly knowledgeable about the field.Ã‚Â DonÃ¢â‚¬â„¢t be.Ã‚Â No one has read every article in any field, and from an evidentiary perspective the answer is perfectly neutral.Ã‚Â It does not prove or disprove anything (assuming the article is not the definitive work in the field).
2.Ã‚Â If your lawyer does not call the literature bluff, feel free to call it yourself.Ã‚Â Q.Ã‚Â Ã¢â‚¬Å“These 58 articles and books refute your position donÃ¢â‚¬â„¢t they?Ã¢â‚¬ÂÃ‚Â A. Ã¢â‚¬Å“I will not comment on what the 58 articles do or do not do as a group.Ã‚Â If you want to put them in front of me one at a time I will tell you whether I consider them to be authoritative.Ã‚Â Then, for each book or article that I consider to be authoritative, if you want to point out specific text for me to comment on, I will be happy to do so.Ã¢â‚¬Â
3.Ã‚Â Never assume anything that benefits the opposition.Ã‚Â In one of his answers Behe said Ã¢â‚¬Å“I assume that is the case.Ã¢â‚¬ÂÃ‚Â This was a mistake.Ã‚Â If, for example, an article is entitled Ã¢â‚¬Å“A Detailed Account of the Evolution of the Immune SystemÃ¢â‚¬Â donÃ¢â‚¬â„¢t assume that the article even discusses the evolution of the immune system, much less that it provides any sort of account of its evolution.Ã‚Â My point here is that you should make the other side work for every point.Ã‚Â DonÃ¢â‚¬â„¢t give them anything.
4.Ã‚Â Remember, you are smarter than the lawyer, but he is better at the cross examination game than you. Ã‚Â DonÃ¢â‚¬â„¢t assume your vastly superior knowledge of the subject matter will allow you to beat him.Ã‚Â As BeheÃ¢â‚¬â„¢s testimony demonstrates, this is not a safe assumption.Ã‚Â In BeheÃ¢â‚¬â„¢s defense, his lawyers did not help his cause as much as they should have.Ã‚Â But donÃ¢â‚¬â„¢t depend too much on the lawyers.Ã‚Â Be prepared to apply tips 1 and 2 even if your lawyers are sitting on their hands.
5.Ã‚Â DonÃ¢â‚¬â„¢t be defensive.Ã‚Â Behe tried to defend the fact that he had not read the 58 articles.Ã‚Â There was no need to do that.Ã‚Â No one expects an expert to have read every article ever written about a subject, and there is no need to state the obvious.
6.Ã‚Â The best witness keeps coming back to his main point.Ã‚Â Hammer it in again and again.Ã‚Â It is OK to be monotonous.Ã‚Â Monotonous is what we want.Ã‚Â Nothing is more discouraging than for an expert to spew the other sideÃ¢â‚¬â„¢s case back at you every time you ask him a question.Ã‚Â When I come across a well-prepared expert like this, I try to get in a few zingers (there is always a zinger or two to be had) and sit down as soon as possible.
7.Ã‚Â DonÃ¢â‚¬â„¢t let the other side get into a rhythm.Ã‚Â The best cross examiner never asks an open ended question.Ã‚Â He asks a bunch of questions that require only very brief answers.Ã‚Â He establishes a rhythm and leads the witness around by the nose.Ã‚Â DonÃ¢â‚¬â„¢t play his game.Ã‚Â Break his rhythm.Ã‚Â Take as much time as you want to answer each question.Ã‚Â Pause before answering, and expand on your answers by applying tip 6 every chance you get.