As I write this there have been 80 comments to my posts about the evidence issues implicated by the plaintiffs’ literature bluff at the Dover trial. Our friends at Panda’s Thumb have also opened a thread to discuss my posts see (here) and also (here). For those interested in my response to PT, read on.
1. The Literature Bluff and Jones reliance on it.
To set the stage once again, here is the passage from the transcript where plaintiffs make their literature bluff followed by the passage from Judge Jones’ opinion where he swallowed it hook, line and sinker:
Q (from plaintiffs lawyer). We’ll return to that in a little while. Let’s turn back to Darwin’s Black Box and continue discussing the immune system. If you could turn to page 138?  Matt, if you could highlight the second full paragraph on page 138?  What you say is, “We can look high or we can look low in books or in journals, but the result is the same. The scientific literature has no answers to the question of the origin of the immune system.† That’s what you wrote, correct?
A (from Behe). And in the context that means that the scientific literature has no detailed testable answers to the question of how the immune system could have arisen by random mutation and natural selection.
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[Behe’s answer here is critical to the analysis. His assertion is obviously NOT that there are no books or articles that generally discuss the evolution of the immune system. Of course there are. His assertion is that none of the books and articles provide detailed testable answers about how the immune system could have arisen through Neo-Darwinian mechanisms. If he were to be impeached by the 58 books and records, the material impeaching him must go to what he said, not something he did not say.]
Q. Now, you were here when Professor Miller testified?
A. Yes.
Q. And he discussed a number of articles on the immune system, correct?
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A. Yes, he did. . . .
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Q. And these are not the only articles on the evolution of vertebrate immune system?
A. There are many articles.
[Behe concedes there are “many†articles that generally discuss the evolution of the immune system. If that were the issue to which the 58 books and articles went, plaintiffs were impeaching him on a point he had conceded, which was strange indeed.]
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Q. May I approach?
THE COURT: You may.
Q. Professor Behe, what I have given you has been marked Plaintiff’s Exhibit 743. ÂÂ
Q. And there are fifty-eight articles in here on the evolution of the immune system?
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A. Yes. That’s what it seems to say . . .
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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 . . .
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Q. You haven’t read those chapters?
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A. No, I haven’t.
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Q. You haven’t read the books that I gave you?
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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?
A. Well, the nice thing about science is that often times when you read the latest articles, or a sampling of the latest articles, they certainly include earlier results.  So you get up to speed pretty quickly.  You don’t have to go back and read every article on a particular topic for the last fifty years or so.
Q. And all of these materials I gave you and, you know, those, including those you’ve read, none of them in your view meet the standard you set for literature on the evolution of the immune system?  No scientific literature has no answers to the question of the origin of the immune system?
A. Again in the context of that chapter, I meant no answers, no detailed rigorous answers to the question of how the immune system could arise by random mutation and natural selection, and yes, in my, in the reading I have done I have not found any such studies.
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[This question and this answer are the nub of the issue. Plaintiffs are trying to impeach Behe on a matter about which he does not disagree with them. It is a matter of apples and oranges. Behe says there are no books and articles giving a detailed account of the evolution of the immune system through Neo-Darwinian mechanisms, and plaintiffs attempt to impeach him by showing him a stack of books and articles that discuss the evolution of the immune system generally – do those books and articles actually impeach Behe’s assertion? There is no way to tell on this record.]
Here is the excerpt from Jones’ opinion where he relies on the literature bluff.
“The immune system is the third system to which Professor Behe has applied the definition of irreducible complexity. Although in Darwin’s Black Box, Professor Behe wrote that not only were there no natural explanations for the immune system at the time, but that natural explanations were impossible regarding its origin. (P-647 at 139; [128]2:26-27 (Miller)). However, Dr. Miller presented peer-reviewed studies refuting Professor Behe’s claim that the immune system was irreducibly complex. Between 1996 and 2002, various studies confirmed each element of the evolutionary hypothesis explaining the origin of the immune system. ([129]2:31 (Miller)). In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty- eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not “good enough.†([130]23:19 (Behe)).â€Â
Note that Jones ignored the distinction Behe made. Behe said there were no DETAILED ACCOUNTS of the evolution of the immune system through Neo-Darwinian mechanism. By the time it got to Jones’ opinion Behe was being quoted as saying there are no accounts of any kind of the evolution of the immune system. As is clear from the transcript above, Behe said exactly the opposite. Behe’s position is that yes, there are general accounts, just no detailed accounts.
2. The books and articles were important for the information contained in them, or they were important for nothing at all.
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Before I get into the specific criticisms, one thing should be made clear. Over and over again, both in response to my posts and in their own posts, my critics keep saying that the only thing the plaintiffs were trying to prove with the 58 books and articles was the mere existence of the books and articles. By this I take it they mean that the mere existence of 58 books and articles about the evolution of the immune system refuted Behe’s assertion that there are no detailed accounts of the evolution of the immune system by random mutation and natural selection. This is one of the silliest arguments I have ever heard, and it is difficult for me to credit that grown people would make it.ÂÂ
The title of a book or article is evidence of nothing. Only the information contained in a book or article is relevant. Can I prove the existence of time travel by introducing as an exhibit a book entitled “A Connecticut Yankee in King Arthur’s Court?â€Â Of course not. Because when one opens the book it is clearly a work of fiction. Can I prove that scientists have developed a detailed account of the evolution of the immune system by introducing a book entitled “A Detailed Account of the Evolution of the Immune System?â€Â No, no, no. The important thing about a book is not the promise of the title, but whether it delivers on the promise. ÂÂ
That is why introducing 58 books and articles for no other purpose than to prove the existence of 58 books and articles with “evolution†and “immune system†in their title proves nothing. Did any of these books actually deliver on the promise of their title? On this record there is no way to tell. Therefore, the point of my posts is that the evidence is meaningless and should have been excluded both as irrelevant (Rule 402) and as Hearsay (Rule 802) UNLESS the procedures of Rule 803(18) were followed. Since the procedures of that rule were not followed, the defendants’ lawyers should have objected to it, and Jones should have (1) excluded it and (2) not relied on it in his opinion.
3. The Second Post Was Based On A Review of the Transcript.
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One critic quotes my second post where I said that after it became apparent that there was no testimony that the 58 books and articles were authoritative, they should have been objected to and excluded. Then he chides me for being inconsistent by quoting from the first post where I said that based on the quotes in Gil’s thread it appeared that an authoritative foundation had been laid.
The answer to this is simple. In my first post I included the following disclaimer:
“I was going to post this in Gil’s “Literature Bluffing†thread, but it got too long, so I am putting it in this post. Let me preface this comment by stating that I have not reviewed the transcript of the Dover trial in detail, and I am basing what I am about to say on the information in the thread to Gil’s post.â€Â
I wrote my second post after reading Behe’s testimony. From that review it was clear that he had not stipulated that the 58 books and articles were authoritative. Indeed, how could he since he was not even asked the question?
4. PT Does Not Get the Basic Point.
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One critic says: “What Eric Rothschild (plaintiffs’ lawyer) was going after in the cross-examination was Behe’s claim that the scientific literature didn’t discuss the evolution of the immune system.â€Â
Nonsense. Pure drivel. Behe admitted there were “many†articles discussing the evolution of the immune system:
Q. And these are not the only articles on the evolution of vertebrate immune system?
A. There are many articles.
Again, Behe’s point was not that there were no articles discussion the evolution of the immune system generally, but no articles providing a detailed account of its evolution through Neo-Darwinian mechanisms.
5. There is more than one way to establish an article is authoritative.
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My critics say that under my interpretation of Rule 803(18), a learned treatise can never be used to impeach an expert unless the expert that is being impeached admits that it is authoritative and that he agrees with it. They say that under my view of the rule the following exchange could take place:  [Expert:] ‘I’m sorry, I have no knowledge of this textbook that is basic to this field.’ [Lawyer:]‘Your honor, move to exclude this on the grounds that my expert doesn’t know a thing about it.’ [Court:] ‘Granted.’â€Â
I never said this; indeed, I said just the opposite (see comment 39 to my second post).
In order to comply with Rule 803(18), the plaintiffs should have asked Behe one by one if each of the 58 books and articles was authoritative. I am sure that after reviewing them one by one Behe would have said that all or most of them were. For those that Behe refused to admit were authoritative, plaintiffs could have had another expert testify they were.
The first step of Rule 803(18) is usually not hard to meet. My point is simply this. There has to be some evidence from a person qualified to comment on the issue that a book or article is authoritative. The judge is not entitled to simply assume that books and articles with fancy titles are authoritative.ÂÂ
In the PT example, if expert A truly is unaware of a definitive work in the field, then the opposition could call expert B to testify that the work is definitive, and then impeach A with the work even if he had never read it.
6. The books and articles were offered to prove the truth of the matters they asserted.
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Another critic writes: “Actually, BarryA is wrong on another count. The books and articles weren’t inadmissible because they were not hearsay. All of his discussion about learned treatises and the parameters of Federal Rule of Evidence 803(18) is meaningless. The books and articles weren’t offered to prove the truth of any statement contained in them. They were offered instead to contradict Behe’s claim that there were no peer-reviewed articles discussing the evolution of the immune system. That being the case, they’re not hearsay and there’s no reason to exclude them from evidence. Fed. R. Evid. 801(c).â€Â
Wrong. Please see comment 2 above.
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