Intelligent Design

After Further Review, It Was Not Judge Jones Only

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Thank you very much to Bob OH for pointing me to a transcript of the Behe literature bluff at the Dover trial.  I have read the transcript in detail, and I now believe the Dover defendants’ lawyers should have made objections that they did not make.  Here are quotes from the Behe examination followed by the objections that should have been made (in bold):
 

Example 1:
 Q. But these articles do discuss immune systems that are different from the vertebrate immune system, correct?
 Objection your honor.  Hearsay.  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.  It is improper for him to characterize the articles and then ask the witness to comment on his characterization.  That is not the way a Rule 803(18) impeachment is done.
 

Example 2:
 

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?
 OBJECTION.  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.  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.  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:  Relevance and lack of foundation.  The general proposition that certain books have chapters that discuss the evolution of the immune system has nothing to with this witnesses’ testimony.  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?

A. Yes.

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.  The titles of the chapters are insufficient to lay an 803(18) impeachment foundation.  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.  If he has not read them, there is no Rule 803(18) foundation that they are authoritative.  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:  Lack of foundation.  Counsel is testifying.  That is improper.  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. 
 

In summary, not only was Judge Jones wrong to rely on the literature bluff in his opinion, the defendants’ lawyers should have made the objections set forth above.  There was plenty of blame to go around.
 Another commenter from my prior post gave a baseball analogy:  “Calling the bluff now strikes me as being like the losing manager of last year’s world series complaining about his star player who was unfairly obstructed in the bottom of the 6th in game three . . . it’s a little late for that; the game’s been over for a while.”

No, I think these issues are still worth discussing.  Let me suggest a baseball analogy of my own.  This discussion is like the manager of last year’s losing team lamenting his wrong decision to put a left-handed reliever in in the 7th inning instead of a right-hander.  I’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.  A person who may be an expert witness in that case reads this blog (it’s his blog after all).  We must be prepared and not repeat the mistakes made in Dover.  Having worked with experts for nearly 20 years, I feel qualified to give Bill some tips if he is ever called as an expert. 

1.  Never, ever accept an opposing lawyer’s characterization of anything.  A lawyer may say “This article says thus and so, what do you think about that?” Hopefully the lawyer for your side will get up on his hind legs (as lawyers say) and object.  But if he does not, do not fall into the trap that Behe fell into.  The only proper response is, “I have not read that article.  I have no opinion about what it says and I will not comment on it.”  That answer is bulletproof.  Some experts are hesitant to say this, because they think it makes them look less than perfectly knowledgeable about the field.  Don’t be.  No one has read every article in any field, and from an evidentiary perspective the answer is perfectly neutral.  It does not prove or disprove anything (assuming the article is not the definitive work in the field).

2.  If your lawyer does not call the literature bluff, feel free to call it yourself.  Q.  “These 58 articles and books refute your position don’t they?”  A. “I will not comment on what the 58 articles do or do not do as a group.  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.  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.”

3.  Never assume anything that benefits the opposition.  In one of his answers Behe said “I assume that is the case.”  This was a mistake.  If, for example, an article is entitled “A Detailed Account of the Evolution of the Immune System” don’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.  My point here is that you should make the other side work for every point.  Don’t give them anything.

4.  Remember, you are smarter than the lawyer, but he is better at the cross examination game than you.  Don’t assume your vastly superior knowledge of the subject matter will allow you to beat him.  As Behe’s testimony demonstrates, this is not a safe assumption.  In Behe’s defense, his lawyers did not help his cause as much as they should have.  But don’t depend too much on the lawyers.  Be prepared to apply tips 1 and 2 even if your lawyers are sitting on their hands.

5.  Don’t be defensive.  Behe tried to defend the fact that he had not read the 58 articles.  There was no need to do that.  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.  The best witness keeps coming back to his main point.  Hammer it in again and again.  It is OK to be monotonous.  Monotonous is what we want.  Nothing is more discouraging than for an expert to spew the other side’s case back at you every time you ask him a question.  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.  Don’t let the other side get into a rhythm.  The best cross examiner never asks an open ended question.  He asks a bunch of questions that require only very brief answers.  He establishes a rhythm and leads the witness around by the nose.  Don’t play his game.  Break his rhythm.  Take as much time as you want to answer each question.  Pause before answering, and expand on your answers by applying tip 6 every chance you get.

54 Replies to “After Further Review, It Was Not Judge Jones Only

  1. 1
    ejruff says:

    It’s too bad the lawyers missed this, but I agree there is LOTS to learn from this case and the many analyses of it that can and will be used successfully in future cases. Another point for any witness to consider is that you can never score points from the witness seat, you can only lose them. All these tips are right on. (BTW, I have no legal background, but was deposed as a key witness in a software patent case for 10 days, and had some pretty good training which mirrored the above – and it ultimately worked for us.)

  2. 2
    tribune7 says:

    Barry,

    You think this stuff might be enough to overturn the decision?

  3. 3
    BarryA says:

    tribune 7

    As I mentioned in my post, this analysis is more in the nature of a post-mortem. The time for filing an appeal in the Dover case has long since passed by and that is no longer an option. My purpose is to draw lessons from the case so that future ID experts and lawyers can avoid the mistakes that were made in Dover.

  4. 4
    Tom English says:

    tribune7: “You think this stuff might be enough to overturn the decision?”

    The theme of this thread is “bad counsel.” You generally cannot appeal on that basis. And only the Dover Area School District could have appealed. The board members who got the District sued by parents were voted out of office, so there was no one in DASD to pursue an appeal.

    BarryA: “The time for filing an appeal in the Dover case has long since passed by and that is no longer an option.”

    Furthermore, from the federal rules of evidence:

    “Rule 103. Rulings on Evidence

    (a) Effect of erroneous ruling.

    Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

    (1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context….”

    Judge Jones gives only two sentences of commentary to the portion of the testimony Barry treats here, and deleting them would lead to no change in his findings. As embarrassing as the “mountain of literature” debacle was to Behe and the ID movement, it really had nothing to do with the outcome of the trial.

  5. 5
    BarryA says:

    ejruff,

    Thank you for your comment. Your experience at a deposition is slightly different from testimony at trial. It is perfectly true, as you say, that a witness can never score points at a deposition, and I say this same thing to deponents all the time. I tell them that every thing you say at your deposition will fall into one of two categories. (1) neutral or (2) bad. Testimony in category 1 will never again see the light of day. Testimony in category 2 will be used to beat you about the head and shoulders at trial. Here is the difference between deposition testimony and trial testimony. The fact finder (some cases a judge, some cases a jury) is not present at a deposition. The fact finder is present at the trial, and that is where your testimony as an expert will make points – indeed, making points with the fact finder is why you are there.

  6. 6
    leebowman says:

    ” … I now believe the Dover defendants’ lawyers should have made objections that they did not make.”

    Absolutely right, and I’ve seen trials (in movies as well as in real life) where after a particular question was given to a witness, the judge looks over at the opposing attorney as if to say, “Aren’t you going to object?” Agreed that it’s tough to be able to instantly object, followed by your qualifying argument/point. That’s where preparation comes in, i.e. anticipating the opposition’s questions and having a ready response. Apparently that wasn’t done.

    Is it really true that Rothschild actually stacked up on the witness stand those articles and books, leaned over toward the witness, looked over his glasses and asked the leading question, “Is your position today that these articles aren’t good enough?” Dead silence for a moment, and it must have brought a few smiles from Tammy Kitzmiller and her friends (conjectural). I can see all kinds of grounds for an objection to that question.

    Another point regarding the 58 articles and 9 books. Did not the defense have the opportunity to examine them ahead of time, and have the opportunity to ask for specific citations? How and the hell do you counter non-specifics, without appearing to be ‘just so’ dismissive of those works in toto, since they were peer reviewed, and by reputable ‘authoritative’ sources??

    Short of that, the objections Barry posed should have been given. Any thoughts on what the plaintiff attorney might have countered the objections with, or if the judge would have overruled?

  7. 7
    BarryA says:

    Tom English

    I concur that any objection to the admission of the evidence was probably waived by defendants’ counsel’s failure to object at trial and therefore could not have been a grounds for appeal. I say “probably waived” because of the “fundamental error” doctrine, which trumps Rule 103.

    Nevertheless, I still maintain that no competent judge would have given the “literature bluff” evidence any weight in his ruling. That is why I now say that both the judge and the lawyers erred.

  8. 8
    Joseph says:

    Tom English:
    As embarrassing as the “mountain of literature” debacle was to Behe and the ID movement, it really had nothing to do with the outcome of the trial.

    What embarrassment? The real embarrassment will come went it is demonstrated the ACLU bluffed and Judge Jones bought it whole sale.

    Reading the judge’s decision and understanding ID it makes me wonder what the heck this guy was listening to. It clearly appears to me that the judge was upset by the tactics and antics of the Dover school board and took it out on ID.

  9. 9
    Joseph says:

    Tom English:
    As embarrassing as the “mountain of literature” debacle was to Behe and the ID movement, it really had nothing to do with the outcome of the trial.

    What embarrassment? The real embarrassment will come when it is demonstrated the ACLU bluffed and Judge Jones bought it whole sale.

    Reading the judge’s decision and understanding ID it makes me wonder what the heck this guy was listening to. It clearly appears to me that the judge was upset by the tactics and antics of the Dover school board and took it out on ID.

  10. 10
    BarryA says:

    leebowman,

    Thank you for your insights. You ask, “Is it really true that Rothschild actually stacked up on the witness stand those articles and books, leaned over toward the witness, looked over his glasses and asked the leading question, “Is your position today that these articles aren’t good enough?”

    Yes, it really is true. As difficult as this is to credit, it really happened.

    “How and the hell do you counter non-specifics . . .?”

    The whole point of Rule 803(18) is that it is improper to even ask a witness to counter non-specifics. That is why the rule requires the portion of the learned treatise relied upon to be read into the record.

  11. 11
    BarryA says:

    Joseph,

    I think you are partly right. Certainly Jones was offended by the Dover school board’s shenanigans. But I don’t think the outcome of the case would have been different even if the members of the board had been models of virtue and rectitude. As I mentioned in my previous post, there are two conditions for a fair test case: (1) a forum where ID can get a fair shake; and (2) squeaky clean parties. Neither condition was met in Dover. If the Dover school board had been beyond reproach, still only one condition would have been met.

    One commenter to my last post said in response to this observation something to the effect that the ID movement does not choose its test cases. I disagree. The Thomas Moore Law Center chose Dover as a test case and pushed it all the way through to judgment. That decision was improvident. Obviously, my counsel is not to some incorporeal “movement,” but to individuals who want to advance the goals of the movement.

  12. 12
    scordova says:

    Joseph wrote: “It clearly appears to me that the judge was upset by the tactics and antics of the Dover school board and took it out on ID.”

    I don’t know how many were aware of this, but this tells what guided Jones’ decision:

    The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.
    ….
    these precepts and beliefs, grounded in my liberal arts education, guide me each day as a federal trial judge.

    Judge Jones
    Dickinson College Commencement 2006

    Now you know what guided judge Jones. He essentially expressed the fact the Bible cannot contain true religion! Whether the Bible does or does not contain true religion is of course an important issue, but if a Judge by fiat has decided a priori that churches and the Bible are false religions, what hope of fairness can we get from Judge Jones.

    (I thank Casey Luskin and John West for pointing this out to me).

  13. 13
    Charlie says:

    Sal, he was also guided by the film Inherit The Wind, which he rewatched as research.

  14. 14
    apollo230 says:

    The Establishment Clause figured heavily in Judge Jones’ decision, and will factor into any future judgment of Intelligent Design in the courts. ID must successfully distance itself from God to survive any subsequent legal scrutiny. I do not see how this could be done when ID has such frankly theological connotations. And do not kid me by saying it carries none. God will be one of the first things that pops into the mind of any judge receiving any ID primer, and that will immediately bring their scrutiny down on the ID party in question. A grass-roots campaign to promote this cause (via IDEA clubs on various campuses, etc) may be the only viable way to promote the cause, given the 90-degree slope facing any court efforts.

    Best regards,
    apollo230

  15. 15
    BarryA says:

    apollo230

    “ID must successfully distance itself from God to survive any subsequent legal scrutiny . . .”

    Why must ID distance itself from its religious/metaphysical implications when Darwinism gets a free pass on its religious/metaphysical implications?

    As a matter of strategy, you are undoubtedly correct. ID should not lead with its chin, and that means continuing to insist that the scientific theory posits nothing about the nature of the designer.

    As a matter of logic, your argument holds no water.

  16. 16
    Strangelove says:

    BarryA: “Why must ID distance itself from its religious/metaphysical implications when Darwinism gets a free pass on its religious/metaphysical implications?”

    The followers of ID are almost entirely Christian evangelicals. There are a few exceptions, true, but I would say over 90% are devoutly religious.

    People of all faiths, from Christians (clergy even) to Muslims to Taoists to Jews to Atheists support the TOE. It seems that the TOE has done a better job of distancing itself from any religious/metaphysical implications that you percieve. I, for one, simply don’t see any. One could just as easily say “the TOE allows me to be an intellectually fulfilled Atheist” as the “Gee, God sure works in mysterious ways!” And people do just that. The TOE isn’t biased towards any particular religion.

  17. 17
    BarryA says:

    Strangelove,

    “I would say over 90% [of supporters of ID] are devoutly religious.”

    Did you do a survey? You can’t simply make up statistics like that to support your argument.

    “I, for one, simply don’t see [any religious/metaphysical implications of TOE].”

    Willful blindness to the obvious of this sort never ceases to amaze me. You should take your faith commitments more seriously. Yes, I said “faith commitment.” A commitment to metaphysical materialism is made on faith, just as much as the most zealous fundamentalist makes a commitment to theism on faith – neither materialism nor theism can be demonstrated or falsified empirically. Michael Ruse, one of the leading lights of the Darwinist camp, understands the metaphysical implications of Darwinism. He wrote:

    “Now, for the first time, one could confidently suspend belief in any kind of God. The Natural development of organisms explains everything, most especially adaptation. Even if you did not want to become a full-blown atheist, you could become what Darwin’s already mentioned supporter, T.H. Huxley, labeled an ‘agnostic’, neither believer nor disbeliever (Huxley, 1900). However, excluding or distancing God in this fashion raises with some urgency the major problems of philosophy. If God (perhaps) does not exist, wherein lie the guarantees of knowledge and of truth? Possibly all is subjective illusion. If God does not exist, wherein lies the force of morality? Why should we not do precisely what we please, cheating and lying and stealing, to serve our own ends? Dry answers by philosophers aiming for purely secular answers tended not to convince. Evolution destroyed the final foundations of traditional belief. To many people, it was evolution that would provide the foundations of a new belief-system. Evolution would lead to a deeper and truer understanding of the problems of knowledge. Evolution would lead to a deeper and true understanding of the nature of morality. Thus were born (what are known now as) ‘evolutionary epistemology’ and ‘evolutionary ethics’.”

    Michael Ruse, Taking Darwin Seriously: A Naturalistic Approach to Philosophy (Oxford Blackwell 1986), 30.

    “The TOE isn’t biased towards any particular religion.”

    Drivel. It is biased toward the cult of Darwinism, which has as its main tenant a commitment to materialism. Why else would Dawkins have said Darwin made it possible to be an intellectually fulfilled atheist.

  18. 18
    Scott says:

    *stands and applauds Barry for comment #17.

    hear hear!

  19. 19
    GilDodgen says:

    As Denyse pointed out, Darwinism has become cultish. Literature bluffing is a dead giveaway that one’s position is logically and evidentially indefensible. The use of the legal system to suppress public dissent is another indication of a cultish mindset.

    I am extraordinarily pleased that my literature-bluffing post ignited this discussion.

  20. 20
    leebowman says:

    Apollo230:

    “The Establishment Clause figured heavily in Judge Jones’ decision, and will factor into any future judgment of Intelligent Design in the courts. ID must successfully distance itself from God to survive any subsequent legal scrutiny.

    Correct me if I’m wrong. First a premise:

    Let’s consider the proposal that ID constitutes religion. Federal Judges’ opinions (and the ACLU) aside, I feel it does not. Now some critical analysis:

    Religion is defined as a set of dogmas, rituals, and beliefs, backed by a belief in a ‘deity’. A common descriptor of religion is, ” A set of beliefs, values, and practices based on the teachings of a spiritual leader.” These definitions are fairly specific, and are the most widely given by lexicon sources, but the most general description you’ll find is, “Belief and reverence of a supernatural power or powers … ” Sorry guys, but nowhere in ID proposals does it stipulate that the interventionary agent is supernatural or divine, or even that it is existent and interventionary today. ID does look for evidence of design, or intent to cause, or help to cause, a particular result, but does not attempt to particularize who or what the causative agent was. There could have been many.

    So current ID definitions lean heavily on the possibility of ‘intervention’ rather than ‘divine creation’ per se. In the 90’s, ID was rife with creationism undertones, as evidenced by the Wedge tome, and even stated goals by DI members and others. That no longer holds, even though there are YECs and religions groups seeking refuge in the ID tent, and may only have furtherance of their religion their only purpose.

    That said, who knows, maybe I’m a YEC. But personal beliefs based on faith don’t enter into the field of study. The broad definition given ID by opponents is intended to keep ‘design inference’ from the realm of scientific inquiry.

    I am a Christian, by the way.

  21. 21
    Strangelove says:

    “Did you do a survey? You can’t simply make up statistics like that to support your argument.”

    No, I didn’t take a survey. I lended a rough guess. Do you disagree with that guess? Two out of two owners of this blog are evangelicals. I don’t know about all of the posters and lurkers. The last I checked, most of the DI were evangelicals. Why else would they pick out the God of Christianity in their Wedge Document?

    “A commitment to metaphysical materialism is made on faith…”

    What is this commitment you speak of? I didn’t sign anything. All I know is that the TOE makes many falsifiable predictions, delivers new avenue’s of research, and is useful in the lab. ID makes absolutely no faslifiable predictions, offers no new research, and no one uses it.

    If I have to choose between a useful theory that explains the world, and a unusable theory that explains the world, I go with useful every time. Call me pragmatic.

  22. 22
    BarryA says:

    Strangelove,

    “No, I didn’t take a survey. I lended [sic] a rough guess. Do you disagree with that guess?”

    I don’t disagree with your guess so much as I disagree with guessing in general when the guess is based on nothing but the guesser’s prejudices.

    “Two out of two owners of this blog are evangelicals.”

    I take back the last comment. Your guess was not based on your prejudices only. You have actually sampled the ID proponent population (we’ll set aside for the moment the fact that your sample is not statistically valid). You have based your guess – which, by the way, you should call a “conclusion” now that you have performed a statistical analysis – about the ID proponent population as a whole based upon a sample size of two. Undeterred by the fact that the standard deviation of your sample approaches zero, you have fearlessly made predictions about the rest of the ID proponent population. Bravo.

    “What is this commitment you speak of?”

    – sighs heavily – Nevermind.

  23. 23
    GilDodgen says:

    “All I know is that the TOE makes many falsifiable predictions…”
    It predicts events after they occur, then explains them with fanciful stories.

    “…delivers new avenue’s [sic] of research, and is useful in the lab”
    Ah yes, Darwinian theory has been so useful in the development of antibiotics, for example.

    “If I have to choose between a useful theory that explains the world…”
    The TOE is not useful; essentially no one uses it to produce anything of consequence. It is utterly ignored in the hard sciences, including the medical and other biological hard sciences, because it is useless when it comes to figuring out how real stuff works in the real world.

    Certainly there can be no question that the TOE explains the world: like how inanimate matter sprung into life spontaneously, and ended up producing Beethoven, his symphonies, and computers that play chess.

  24. 24
    Strangelove says:

    BarryA: “your guess – which, by the way, you should call a “conclusion” now that you have performed a statistical analysis”

    Please do not attempt to put words in my mouth. I called it a guess, and I mean no more. I will once again ask you honestly: Do you think my guess is far off? Silence is also an answer. My guess is not based on prejudice. I’ve been following the ID/TOE discussions for a few years now. The dominant number of vocal ID proponents I come across on the internet are devout evangelicals. It’s not called prejudice if they confess it themselves. I also do not call the religious language in the wedge document “prejudice”. I understand that you choose to throw around strong rhetoric instead of information. And I know how influential it can be. This is why I truly fear ID. I don’t fear it’s content, I fear it’s influential rhetoric.

    “It predicts events after they occur, then explains them with fanciful stories.”

    The TOE predicted many transitional fossils. For example, Tiktallik, legged whales, etc. It predicted these fossils BEFORE they were found. It also predicted where to look for evidence of chromosomal fusion in the human genome. Think about that. The TOE demanded that chromosomal fusion took place. (We have 23, our ancestors had 24.) We checked the place in the chromosome it predicted, and there it was: evidence of chromosomal fusion. Those are just some extremely recent examples.

    Can you name anything that ID has predicted?

  25. 25
    antg says:

    Stangelove,

    If I believed everything I read on the Pandas Thumb website, I would also fear ID.

  26. 26
    idnet.com.au says:

    ID predicted and still predicts that the genome is not just about making proteins. It predicts higher levels of organization in the genome. It predicts that DNA stipulates morphology in a prescribed way. These are levels of organization that are way more complex than just getting an impossible random sequence for even one useful protein by chance. ID predicts that origin of Life experiments will produce very little in the way of useful results. ID predicts that genomes that radiate do so in response to the enviromnemnt acting on pre existing information, not on random mutations of previously useful information.

    ID predicts that ID will be the organizational paradigm within the next couple of decades and that people will look back and laugh at the fact that we believed RM and NS produced the biological worls without design.

  27. 27
    idnet.com.au says:

    ID is already assumed in most of experimental molecular biology. We seek the order we expect.

    Darwinists say it is there because of RM and NS, Designists say it is designed to be there.

    Dennett uses the terms “wonderful design” to describe what we find in biology. It is a question not of the demonstrable existence of design, but whether NDE can pull the designer rabbit out of it’s old hat theory.

  28. 28
    Joseph says:

    Apollo230:
    The Establishment Clause figured heavily in Judge Jones’ decision, and will factor into any future judgment of Intelligent Design in the courts.

    As Justice Lewis Powell wrote in his concurrence to Edwards v. Aguillard:

    “(A) decision respecting the subject matter to be taught in public schools does not violate the Establishment Clause simply because the material to be taught ‘happens to coincide or harmonize with the tenets of some or all religions’.”

    Apollo230:
    ID must successfully distance itself from God to survive any subsequent legal scrutiny.

    ID doesn’t say anything about “God”. Only people who don’t understand ID make that connection.

    Apollo230:
    I do not see how this could be done when ID has such frankly theological connotations.

    I don’t see any theological connotations with ID. I’m less religious now than I ever was.

  29. 29
    apollo230 says:

    Good morning, everyone! Thank you for your replies.

    All I meant to do with post #14 was to make an observation that ID would have difficulties in future court cases because of the theological overtones it calls to mind. This certainly happened at Dover. ‘Should’ it bring such connotations was not my concern, rather, ‘will’ it, and the answer is yes, it will make judges think of God, and hence bring sharp scrutiny to the theory, and to its pedigree.

    Best regards,
    apollo230

  30. 30
    apollo230 says:

    Also, for the record, I note that Strangelove appears to be criticizing ID theory.

    I do hope that he is NOT censored, (as others have been on this blog) for posting dissenting/critical opinions. Thoughtful and (at least) civil dissent should be welcomed. In my opinion, it makes for interesting discussions, sharpens our arguments, and promotes a democratic atmosphere of free exchange.

    I am keenly aware that this is a privately-owned blog, but let me caution those who would engage in censorship that it sends the wrong message to the general public-that ID loyalists are intolerant, undemocratic, and afraid of criticism.

    This comes from an ID sympathizer concerned about the banning of contrarian opinion that he has witnessed here on several occasions.

    Best regards,
    apollo230

  31. 31
    Chris Hyland says:

    It appears that the main charge here is that it was not proved at the trail that the literature shown to Behe was authoritive or indeed contained what it was claimed to contain. I would like to ask the legal brains here, assuming for the sake of argument that the literature did contain the information the prosecution claimed, and assuming the Judge cannot read them all and decide for himself from expertise, how scientific literature could be introduced as authoritive. Apologies if this has been covered elsewhere.

  32. 32
    Joseph says:

    Apollo230:
    ‘Should’ it bring such connotations was not my concern, rather, ‘will’ it, and the answer is yes, it will make judges think of God, and hence bring sharp scrutiny to the theory, and to its pedigree.

    I said it before and I will say it again:

    Justice may be blind but judges shouldn’t be ignorant.

    Only those willfully ignorant of ID would make the connection of ID therefore “God”.

    Apollo230:
    I am keenly aware that this is a privately-owned blog, but let me caution those who would engage in censorship that it sends the wrong message to the general public-that ID loyalists are intolerant, undemocratic, and afraid of criticism.

    Then one must wonder what that same general public feels about the censorship of ID…

  33. 33
    BarryA says:

    Apollo230

    “I do hope that he [i.e., Strangelove] is NOT censored, (as others have been on this blog) for posting dissenting/critical opinions.”

    UD posters have the option of editing (OK, censoring if you insist) comments in the threads to their own posts. Obviously, the moderators have the option to do this with all comments.

    I am pleased to say that I have never had to exercise this option. I can imagine circumstances where I would (obscene comments, etc.), but it has not happened yet. It never occurred to me to edit a comment for the mere fact that someone disagrees with me. As I have written before, one of the things that makes this blog fun is putting stuff out there and watching the sparks fly. If this blog degenerates into a “me too” club it will get boring very fast.

    With respect to Strangelove in particular, I like him in the same way I like a feisty terrier. You know what I mean. The terrier barks and plays and nips at you, and for a long time it’s fun; only problem is the terrier never knows when to quit, and it gets tedious after a while, which is why I did not respond to his last comment.

  34. 34
    BarryA says:

    Chris Hyland

    “assuming for the sake of argument that the literature did contain the information the prosecution claimed, and assuming the Judge cannot read them all and decide for himself from expertise, how scientific literature could be introduced as authoritive.”

    Good question Chris. The answer is that a judge is not supposed to go out and do independent research on a matter of science. In any given case he is supposed to limit his decision to the evidence that was presented at trial. Scientific evidence comes in through experts. Books and articles may NOT be introduced as evidence at trial. That would violate the hearsay rule. Federal Rule of Evidence 803(18) provides a limited exception to this rule. It requires a two step process:

    Step 1: Lay a foundation that the book or article is authoritative. This is done through expert testimony.

    Step 2: The excerpt from the book is read into the record; the book itself is not introduced as an exhibit.

    In Dover, if the literature in the infamous 58 book and article literature bluff had actually contained information that contradicted Behe’s conclusions, the plaintiffs’ lawyers should have been required to follow this rule. This means they would have been required to:

    Step 1. Put each and every book and article in front of Behe and ask him whether he considered them to be authoritative. If there was no testimony from an expert that the books and articles were authoritative, then they could not be used for any purpose.

    Step 2. Open each and every book and article, point to the precise language that contradicted Behe’s testimony and read it into the record.

    As I said before, this process, if followed (and it should have been; compliance with the rules of evidence is not optional) makes literature bluffing impossible in a federal courtroom. I am still amazed that the defendants’ lawyers did not object to the literature bluff tactic.

  35. 35
    Joseph says:

    The dominant number of vocal ID proponents I come across on the internet are devout evangelicals.

    The opposite has been so for me. The evangelicals I know oppose ID because it “lowers ‘God’s’ place”. However in my experience the most vocal proponents of evolutionism are all atheists. When TE’s get involved they always insist that the ToE does NOT mandate blind, purpose-less (non-goal oriented) processes even in the face of the data that demonstrates that is exactly what the ToE mandates.

    The TOE predicted many transitional fossils.

    You are confusing the ToE with common descent.

    For example, Tiktallik, legged whales, etc.

    Those are very subjective finds. Tiki, for example, totally blows away the old evo story of fish being forced from the waters by predators and were forced to land to search for food.

    Evolutionary imagination should NEVER take the place of reality.

    It predicted these fossils BEFORE they were found.

    Again you are confusing the ToE with CD.

    It also predicted where to look for evidence of chromosomal fusion in the human genome. Think about that. The TOE demanded that chromosomal fusion took place. (We have 23, our ancestors had 24.) We checked the place in the chromosome it predicted, and there it was: evidence of chromosomal fusion. Those are just some extremely recent examples.

    I would love to see the citations in which ANY of these events were predicted.

    Can you name anything that ID has predicted?

    Yes. Read “The Privileged Planet”. It contains several- For example if/ when we discover other complex life is found elsewhere in the universe, the many factors observed here will also be present there. And that life will be carbon based.

    “The most decisive way to falsify our argument as a whole would be to find a distant and very different environment that, while quite hostile to life, nevertheless offers a superior platform for making as many diverse scientific discoveries as does our local environment. The opposite of this would have the same effect- finding an extremely habitable and inhabited place that was a lousy platform for observation.”

    Then we have CSI and IC. Two concepts that can be tested. Either they are present or they are not. Either unintelligent, blind/ undirected (non-goal oriented) processes can account for them or not (we already know intelligent agencies can account for them).

  36. 36
    Chris Hyland says:

    Barry, thanks for the explanation. Presumably then what the prosecution should have done was prepare a selection of quotes from the publications and have an immunologist testify that they are authorative?

  37. 37
    apollo230 says:

    RE: #33

    Kudos to you, Barry, for tolerating dissent on your personal threads. Such conduct is pleasing and honorable.

    As for not responding to specific posts, that is strictly your business – and rightly so, after all, it’s your time and energy that you use to respond to anyone’s contentions.

    Best regards,
    apollo230

  38. 38
    Strangelove says:

    “only problem is the terrier never knows when to quit, and it gets tedious after a while, which is why I did not respond to his last comment.”

    Thanks for the answer!

  39. 39
    BarryA says:

    Chris Hyland

    “Presumably then what the prosecution should have done was prepare a selection of quotes from the publications and have an immunologist testify that they are authoritative?”

    No, on two counts. First, it is not the quotes that will used that need to be authoritative, it is the book or article as a whole. Once the book or article as a whole has been established as authoritative, then the quotes can be read into the record to impeach the adverse expert.

    Second, there was probably no need to hire an immunologist. For one thing, the issue was not immunology but the evolution of the immune system. Just any immunologist would not do; only a biologist with expertise on the evolution of the immune system could testify about whether the books and records were authoritative with respect to that subject. Also, there was probably no need to call even the second kind of expert, because I am sure Behe would have admitted that many of the articles were authoritative on the subject of evolution of the immune system. In other words, the plaintiffs could have accomplished “step one” by simply asking Behe’s opinion. Keep in mind that “authoritative” is not synonymous with “something I agree with.” It means only that the person writing the book or article is competent to comment on the subject matter. I am sure that Behe would have agreed that many of the authors of the 58 books and articles (perhaps all) were competent to comment on the subject of evolution of the immune system.

    The first step of 803(18) is usually not hard to meet. It is the second step that was important here. The plaintiffs bluffed the judge into believing those books and articles contained information that refuted Behe’s testimony. They did not. To prevent the bluff, all the defendants’ lawyers need to do was to require plaintiffs’ lawyers to follow the rules and point to the exact spot in each book where a detailed account of the evolution of the immune system was set forth. In short, they should have called the bluff.

  40. 40
    BarryA says:

    apollo230

    Thank you, but I do not “tolerate” dissenting views. I welcome them.

    Barry

  41. 41
    BarryA says:

    Strangelove,

    When I saw comment 38 I had to laugh, because, of course, it demonstrates my point.

  42. 42
    Larry Fafarman says:

    From the trial transcripts —
    Q. Professor Behe, what I have given you has been marked Plaintiff’s Exhibit 743 . . .

    So the stack of “learned treatises” was entered as an exhibit, even though the Federal Rules of Evidence’s Rule 803(18) — shown below — expressly states that such literature may not be received as exhibits:

    The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

    – – – – – –

    18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. — from http://www.law.cornell.edu/rul.....tm#Rule803

    Actually, I did not need any court rule to tell me that there was something very fishy about admitting a stack of literature as evidence.

    The defense could also have made a written objection to the use of this stack of publications as an exhibit. The following webpage lists several court documents concerning exhibits: http://www2.ncseweb.org/kvd/?path=all_legal/

  43. 43
    Anfractuous says:

    BarryA, I was going to leave this comment in your earlier thread but will post it here, instead. You seem to be misreading both FRE 803(18) and the transcript. 803(18) does not say, as you indicated in your earlier post, that “[i]n order for the information in the treatises to come into evidence . . . the relevant statements must be read into evidence.” It says that being read into evidence is optional: “If admitted, the statements may be read into evidence but may not be received as exhibits.” FRE 803(18) (emphasis added).

    Nor does it appear from the transcript or the opinion that the court relied on the treatises in the manner you describe. Rather, it is Behe’s reaction to the articles that was significant to the court. The transcript and the opinion show that the core issue was his admission that academic publication is a useful way of determining scientific validity but that intelligent design has a poor track record of such publication when measured against evolutionary biology. This is perfectly consonant with 803(18)’s “To the extent called to the attention of an expert witness” qualification.

    Finally, I cannot believe that a practicing attorney would make such tendentious objections in court. Your proposed line of objections, if taken seriously, would eviscerate 803(18) because no scholarly article, no matter how well regarded and accurate, would be a qualifying treatise. Moreover, these articles and texts clearly are “published treatises” that are “reliable authorities” in their field. The fact that a party doesn’t like the text doesn’t make it an unreliable authority. The foundation objections are frivolous; these are authoritative documents, and the court was entitled take judicial notice of that fact by the plain text of 803(18). Again, the fact that one party doesn’t like the content of the documents doesn’t make them unreliable or non-authoritative; if that were the case, then 803(18) would be an empty formalism. This is a very poorly advanced argument that relies on an inaccurate and misleading characterization of both the Federal Rules of Evidence and the Kitzmiller trial itself.

  44. 44
    Bob OH says:

    Barry:

    I’ve read a bit further in the transcript, and I think it becomes clear that the point of raising the 58 articles etc. was not that they were authoritative about evolution of the immune system, but rather that there were so many of them. Start from about here:

    http://www.talkorigins.org/faq.....day12pm185

    and you’ll see that the point is that Behe challenged “publish or perish”, and Mr. Rothschild was showing (or trying to show!) that evolutionary biologists had published, whereas Behe and other IDers had not. So I think it was enough to show the existence of the academic literature, the contents were not so important, other than that they were on topic. Behe was happy to accept this, so I can’t see the problem: presumably if challenged, Rothschild would have read the titles and (if necessary) the abstracts.

    Bob

  45. 45
    Anfractuous says:

    Larry, you deceptively omitted part of the comment you quoted. The complete statement was: “Professor Behe, what I have given you has been marked Plaintiff’s Exhibit 743. It actually has a title, ‘Behe immune system articles,’ but I think we can agree you didn’t write these?” From the context, Exhibit 743 cannot have been “a stack of literature” as you characterize it. It seems, from what I can tell, that it was nothing more than the list of articles reproduced here: http://www2.ncseweb.org/kvd/ex.....index.html. I think I read that all of the exhibits had been scanned and were available, so maybe someone can track down 743 and find out. Quoting just half a statement and omitting the relevant context is not helpful.

  46. 46
    scordova says:

    BarryA,

    For what it’s worth: Pandas respond to BarryA

    Its nice to know the other side studies what we write.

    Salvador

  47. 47
    BarryA says:

    Bob Oh,

    No, you are Wrong. The issue to which the 58 books and articles went was not their “mere existence,” it was the “good enough” issue, and of course that is exactly the issue to which Jones referred when he discussed the literature bluff in his opinon.

    Anfractuous

    I don’t see the point of your “may be read into evidence” comment. This is merely stating the exception to the hearsay rule, because but for the 803(18) exception the excerpt from the treatise MAY NOT be read into evidence.

    The judge used the evidence in exactly the way I described. See my response to Bob Oh above.

    “I cannot believe that a practicing attorney would make such tendentious objections in court.”

    American Heritage defines “tendentious” as “Marked by a strong implicit point of view; partisan.” I walk into a courtroom with one and only one purpose – to advance my client’s case. I hope all of my courtroom statements, including my evidence objections, are tendentious.

    “the court was entitled to take judicial notice” that the books and articles were authoritative.

    You don’t understand the doctrine of “judicial notice.” It has a very specific legal meaning. It does NOT mean a judge can say, “well they look good to me, so I’ll hold they are authoritative.” A court may take judicial notice of a fact only if it is “universally regarded as established.” Blacks Law Dictionary.

    “the fact that one party doesn’t like the content of the documents doesn’t make them unreliable or non-authoritative”

    Well, this I agree with, and if you had read my prior comments you would have known that I said as much in comment 39.

    “Your proposed line of objections, if taken seriously, would eviscerate 803(18).”

    Doesn’t it seem passing strange to you that by insisting on compliance with the plain language of a rule I would “eviscerate” it? No sir. I have the advantage on you, and I will pull rank. I have actually used Rule 803(18) in a trial in exactly the way I have suggested it should have been used in Dover. I can assure you no one in the courtroom thought I was trying to eviscerate the rule.

    I THINK THAT IS ENOUGH FOR THIS DISCUSSION. THE REST OF YOU CAN CONTINUE TO POST COMMENTS OF COURSE, BUT I AM MOVING ON.

  48. 48
    Larry Fafarman says:

    Anfractuous said ( Comment #45 ) —

    Larry, you deceptively omitted part of the comment you quoted. The complete statement was: “Professor Behe, what I have given you has been marked Plaintiff’s Exhibit 743. It actually has a title, ‘Behe immune system articles,’ but I think we can agree you didn’t write these?” From the context, Exhibit 743 cannot have been “a stack of literature” as you characterize it. It seems, from what I can tell, that it was nothing more than the list of articles reproduced here: http://www2.ncseweb.org/kvd/ex.....index.html

    OK, so a few book or article titles were read into the trial transcript. There is a saying that you can’t judge a book by its cover, and you also can’t judge a book (or article) by its title.

  49. 49
    Bob OH says:

    #28:

    ID doesn’t say anything about “God”. Only people who don’t understand ID make that connection.

    I see. So this is a statement by someone who don’t understand ID:
    “Intelligent design is just the Logos theology of John’s Gospel restated in the idiom of information theory,”
    (I suggest you check to see who said it before replying)

    Bob

  50. 50
    BarryA says:

    Bob Oh,

    When will Darwinists stop conflating the implications of ID with the theory itself?

  51. 51
    Joseph says:

    To Bob OH,

    I would have to see the full context of the quote before saying anything about it. I know who it is attributed to. Things change and the same person has written that ID/ IDists is/ are NOT religiously motivated. See the introduction of “Signs of Intelligence; Understanding Intelligent Design” (2001).

    Gonzalez told the AP that ID does NOT require a belief in “God”. Can IDists believe the designer is “God”? Yes they can. Can they talk about the designer that way? Yes they can. Does that mean ID is about “God”? No it does not.

    On another note:

    Abstracts and titles do NOTHING to substantiate the claims made by the plaintiff’s lawyer(s). IC is NOT anti-evolution. Therefore saying “it evolved” does NOT say anything about a mechanism.

  52. 52
    Karen says:

    Joseph said, “You are confusing the ToE with common descent.”

    Hope you don’t mind my jumping in here, but common descent is a big part of evolutionary theory.

  53. 53
    Charlie says:

    Karen,
    It it is true that ToE (Darwinism, neo-Darwinism, modern synthesis, etc) entails a theory of common descent, but it also carries a theory of random mutation as the source of variation and a theory of natural selection as the cull.
    ID proper does not reject common descent, and a prediction of common descent is not a prediction of RM and NS.

  54. 54
    Joseph says:

    Thank you Charlie.

    But I would go even further. The ToE doesn’t predict metazoans. The ToE doesn’t predict that whales will evolve from land animals or that whales will evolve at all. The ToE doesn’t predict immune systems. The ToE doesn’t predict a last universal common ancestor.

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