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Kitzmiller v. Dover Area School District

Trial transcript: Day 1 (September 26), AM Session, Part 1


THE COURT: Good morning to all. Counsel, would you enter your appearances starting with counsel for the plaintiffs.

MR. ROTHSCHILD: Good morning, Your Honor. Eric Rothschild from Pepper Hamilton, L.L.P., for the plaintiffs.

MR. HARVEY: Good morning, Your Honor. Steve Harvey, Pepper Hamilton, for the plaintiffs.

MR. WALCZAK: Your Honor, Witold Walczak, American Civil Liberties Union of Pennsylvania, for the plaintiffs.

THE COURT: All right.

MR. GILLEN: Good morning, Your Honor. Patrick Gillen from the Thomas More Law Center for the defendants.

MR. THOMPSON: Good morning, Your Honor. Richard Thompson of the Thomas More Law Center for the defendants.

MR. MUISE: Good morning, Your Honor. Robert Muise from the Thomas More Law Center for the defendants.

THE COURT: And good morning to all of you. Are you prepared to open?


THE COURT: You may do so.

MR. ROTHSCHILD: Good morning, Your Honor. My co-counsel and I represent eleven parents who are challenging the Dover Area School District's change to its biology curriculum. That change to the biology curriculum, which is displayed on your monitor and on the screen, singles out the scientific theory of evolution, among all the scientific concepts taught to Dover High School students, as being suspect and promotes the religious proposition of intelligent design as a competing scientific theory.

Eighteen years ago, the United States Supreme Court, in Edwards versus Aguillard, held that public schools could not teach students creation science because that proposition's core concept of a supernatural creator is religious, not scientific, and therefore violates the establishment clause of the First Amendment to the United States Constitution. The Court recognized that the teaching of creation science was motivated by a religious and cultural agenda, not the improvement of scientific education.

What we will prove at this trial is that the Dover board policy has the same characteristics and the same constitutional defects as the creation science policy struck down in Edwards. You will hear testimony from members of the Dover community, these parents, teachers, administrators, and board members, about how this change to the curriculum came to be.

Board members announced their interest in the topic of evolution in starkly religious terms. They looked for a book that could provide a religious alternative to evolution, and they found one in Of Pandas and People.

They changed the science curriculum to advance a specific religious viewpoint, and in doing so, they ignored accepted scientific knowledge, failed to avail themselves of the advice of established scientific organizations, and ignored their own science teachers who opposed the change to the science curriculum.

They did everything you would do if you wanted to incorporate a religious topic in science class and cared nothing about its scientific validity. And we will show that the members of the school board that passed this policy expressed their desire to teach creationism over and over and over again. That's their word, "creationism."

As Your Honor will recall, in January, you permitted expedited discovery so these plaintiffs could decide whether to move for a temporary restraining order. We deposed Alan Bonsell and Sheila Harkins, the last two board presidents, William Buckingham, the head of the curriculum committee when the curriculum change was approved, and Dr. Richard Nilsen, the Dover Area School District's superintendent.

All of them denied media reports that the board had spoken openly about creationism at board meetings leading up to the curriculum change. And they and other witnesses continued to deny such statements in depositions throughout this litigation.

Faced with what appeared to be surprisingly contradictory evidence about what the board members actually said, plaintiffs decided not to seek a temporary restraining order so that this Court could decide this case on a more complete record. Now we have that record.

Matt, could you pull up Exhibit 21. This is superintendent Nilsen's record of what board members said at a board retreat on January 9th, 2002. Matt, could you highlight Item C. Dr. Nilsen reported that Alan Bonsell talked about creationism and prayer at this board retreat.

Could you pull up Exhibit 25. This is Dr. Nilsen's record of what board members said at a board retreat on March 26, 2003. And could you highlight Section D, again, under Mr. Bonsell. Again, Dr. Nilsen reported Mr. Bonsell as talking about creationism.

Could you pull up Exhibit 26, please. This is Plaintiffs' Exhibit 26. This is a memorandum received by Mr. Michael Baksa, the assistant superintendent for the district, and copied to Dr. Nilsen, the superintendent, reflecting what Mr. Baksa told Bertha Spahr, the head of the Dover High School Science Department, about a board member's views on teaching evolution.

Matt, could you highlight the last sentence of the first paragraph. A board member wanted 50 percent of the topic of evolution to involve the teaching of creationism.

Could you pull up Exhibit 60, please. This is a letter that Board Member Heather Geesey wrote to the York Sunday News on June 27th, 2004. Could you highlight the last paragraph, please. You can teach creationism.

Could you pull up Exhibit 662. This is a draft change to the Dover biology curriculum prepared by Assistant Superintendent Michael Baksa. Could you highlight the bottom section, please, Matt. Creationism. And if you look at the text of this draft change to the curriculum, it's remarkably similar to the change that was actually approved, though the final version had intelligent design, not creationism.

And the entire Dover community is aware of what Mr. William Buckingham, the chair of the curriculum committee when this curriculum change was passed, has said on this subject. (Tape played.) "Such as creationism." Defendants refusal to admit their advocacy of creationism in the face of overwhelming evidence says everything about their true motives.

What the board did was add creationism to the biology curriculum under its new name, intelligent design. You will hear from Barbara Forrest, an expert on the history of intelligent design. She will describe how the textbook Of Pandas and People that the school district directs its students to was conceived and developed as a creationist book and changed the name of the concept it was promoting to intelligent design after the Edwards decision held that creation science could not be taught.

Indeed, the very definition of intelligent design found in the Pandas book used in Dover is identical to the definition of creationism found in earlier drafts of that book. The publisher of Pandas, like the Dover Area School Board, employed semantics, wordplay, to obscure its clear religious creationist project.

Dr. Forrest will also describe how the leaders of the intelligent design movement are carrying out a strategy, what they call the Wedge strategy, to overturn the rules of modern science so that you can include supernatural activity, so that science can be Christian and theistic.

You will also hear from John Haught, a theologian, who will explain that intelligent design is not new science. It is old theology, the argument for the existence of God that has been around for centuries. He will also explain that it is not a universal religious view, but rather a particular one accepted by many people of faith but inconsistent with the beliefs of many others.

Intelligent design is not identical in every respect to the creation science previously addressed by the Supreme Court in Edwards and other courts, but in all essential aspects, it is the same. Intelligent design really is a perfect example of evolution. Throughout this century, religious opponents of evolution, concerned that evolution contradicts a literal reading of the Bible and promotes cultural decay, have employed varying tactics to denigrate or eliminate the theory of evolution in the minds of young students.

They have tried forbidding the teaching of evolution, promoting creationism or creation science as an alternative to evolution, and singling out evolution for special criticism. Each of those tactics have been found unconstitutional by courts. Confronted with that inhospitable legal environment, creationists have adapted to create intelligent design, creationism with the words "God" and "Bible" left out.

They have promoted a book, Of Pandas and People, that invokes a master intellect that shapes clay into living form and then says, we're not referring to anyone in particular. This clever tactical repackaging of creationism does not warrant different treatment under the Constitution.

The intelligent design movement has argued and we expect you will hear defendants argue in this courtroom that intelligent design has improved on creationism by developing a scientific argument for design. Defendants' own experts call it science in its infancy, and if this is true, there is no educational purpose in test-driving it with high school students.

But intelligent design is not science in its infancy, it's not science at all. You will hear from Kenneth Miller, a biologist; Kevin Padian, a paleontologist; Robert Pennock, a scientific philosopher; and Brian Alters, an expert on teaching science. They will testify about how science is practiced and taught, why evolution is overwhelmingly accepted as a scientific theory, and why intelligent design has no validity as a scientific concept.

There is no data or laboratory work demonstrating intelligent design. It is not a testable hypothesis. It misrepresents established scientific knowledge. Let's be perfectly clear, there is no controversy in the scientific community about the soundness of evolution and that intelligent design is not a scientific topic at all.

Intelligent design has arguments with fancy names like "irreducible complexity" and "specified complexity," but these arguments are not a positive case for intelligent design, just negative attacks on evolution. And even those arguments have not been advanced in the way that real working scientists do every day, by publishing original data in peer-reviewed scientific journals. In fact, intelligent design admits that it is not science at all unless science is completely redefined to include the supernatural.

At this trial, you will hear the parties use the term "methodological naturalism." Methodological naturalism is the term used to describe science as self-imposed limitation, that it will only consider natural causes for natural phenomena. Science does not consider supernatural explanations because it has no way of observing, measuring, repeating, or testing supernatural events. It doesn't mean that supernatural events, including divine miracles, have not happened, just that science cannot properly make any statements about them.

But intelligent design will not accept the well-established boundaries of science and openly rejects methodological naturalism, the way science has been practiced for centuries. Why? Because it has to. In the end, no matter how many stones intelligent design throws at the theory of evolution, the only alternative it presents for the development and diversity of life, the only explanation for how a bacterial flagellum or the human eye came to be is a miracle, an abrupt appearance, an act of supernatural creation. That, by itself, establishes intelligent design as a religious argument, not a scientific argument, for the creation of biological life that cannot be taught to public school students.

The district will argue that any constitutional problem with its policy may be ignored because the statement read to students is brief and because it has promised not to teach intelligent design or even allow students to ask questions about it. This limitation, of course, raises the question, what's the point? What possible secular educational purpose could the policy have?

Plaintiffs' scientific and teaching experts will explain that there is none. Worse yet, the statement denigrates the theory of evolution in a way that one of defendants' own experts describes as misleading.

Of course, there is no such thing as a little constitutional violation, and this policy surely isn't one. The Dover board has imposed its particular religious viewpoint on the students at Dover High School and through a newsletter to the entire Dover community.

Viewed in the context of the public statements and actions by the board in developing and implementing the policy, it can only be viewed by the Dover High School students and Dover community as an expression of the board's religious viewpoint and as favoring a religious view about creation.

In the Edwards decision, the Supreme Court underscored that it must be particularly vigilant in monitoring compliance with the establishment clause in elementary and secondary schools. Families entrust public schools with the education of their children but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the students and his or her family.

The Dover School Board has violated these parents' trust by imposing its own religious agenda on Dover High School students and the Dover community. And it has clearly divided the Dover community, which could not help but conclude that its high school curriculum now includes a religious proposition, the 21st Century version of creationism.

The evidence that I have described this morning and much more evidence that you will hear during the course of this trial will demonstrate that the board had the purpose of promoting religion and that its policy had that effect.

For those reasons, at the end of trial, we will request that the Court enter an order finding that the Dover School Board's change to its high school biology curriculum is unconstitutional and ask you to permanently enjoin the district from implementing that curriculum change. Thank you, Your Honor.

THE COURT: All right. Thank you, Mr. Rothschild. Mr. Gillen, are you prepared to open?

MR. GILLEN: Thank you, Your Honor. Good morning, Your Honor.

THE COURT: Good morning again to you.

MR. GILLEN: Patrick Gillen again from the Thomas More Law Center on behalf of the defendants in this action, the Dover Area School District and its board of directors. Again I'd like to introduce my colleagues at counsel's table, Dick Thompson and Robert Muise. Absent from the courtroom but valued collaborators in this effort, my colleagues Ed White and Julie Shotzbarger.

Seated behind counsel's table, our clients, the Dover Area School District, through its board of directors, citizens elected by their constituents, represent the interests of the parents and families of the district, the students who are educated through the hard work of the board, the administration, faculty and staff of Dover Area School District.

Your Honor, it is our pleasure to appear on behalf of our clients today because I am confident that at the conclusion of these proceedings, you will find that the evidence shows that these citizens seated before you today were engaged in a legitimate exercise of their lawful authority where they enacted a modest change to the biology curriculum for the purpose of enhancing science education, for the evidence will show that the purpose and effect truly at issue in this litigation is the purpose and effect of a curriculum change that was worked out after a process of deliberation involving the board, the administration, the science faculty, and the public.

And it resulted in a modest four-paragraph statement which mentions intelligent design, makes students aware of the existence of the theory, makes them aware that it's a theory of the origins of life different from Darwin's theory of evolution. It explains that there's a book in the library, Of Pandas and People, that deals with intelligent design theory or IDT.

In fact, the evidence will show that the more recent statement points students to other books in the library addressing intelligent design theory and that three of those books are penned by the plaintiffs' experts and critical of the theory. This case is about free inquiry in education, not about a religious agenda.

Your Honor, the evidence will also show that this four-paragraph statement is the total actual effect that the curriculum change has on science instruction in the district, because apart from that four-paragraph statement, science teachers teach evolutionary theory as required by Pennsylvania state standards. The use of texts presents the evolutionary theory. Biology by and Levine, one of the coauthors, Ken Miller, is one of the plaintiffs' experts in this case.

In this way, the evidence will show that while students are taught evolutionary theory, they are merely made aware of the existence of another theory, the intelligent design theory, and that while students are assigned a basal text that presents evolutionary theory, they're merely made aware of the existence of a reference text in the library that deals with intelligent design theory, if they care to check it out. And they are told that they will be tested on evolutionary theory, as required by Pennsylvania state standards.

Further, the evidence will show that Superintendent Richard Nilsen, in response to concerns addressed by science faculty about the implementation of the curriculum change, issued specific guidelines that intelligent design theory would not be taught, that creationism would not be taught. Teachers would not teach their own religious beliefs.

Now, there's no question, Your Honor, that this final result was worked out through a contentious policy-making process that has led some to liken making legislation to making sausage, a process that involved, at times, heated argument by members of the public, members of the board, false charges and intemperate remarks. But the evidence will show that the consistent goal of the board, as a whole, was to pursue what they believed to be a legitimate educational purpose and to comply with the law.

Alan Bonsell is a perfect example. He came to the board without any background in education of the law, just a sincere desire to serve his fellow citizens. By virtue of his personal reading, he was aware of intelligent design theory and that 300 or so scientists had signed a statement indicating that biologists were exaggerating claims for the theory.

He had read about the famous Piltdown man hoax. He had an interest in creationism. He wondered whether it could be discussed in the classroom. Those questions are not evidence of unconstitutional conduct, Your Honor. They were quite legitimate.

In fact, the evidence will show that on the very day of the March 26th, 2003 board retreat, the assistant superintendent of the district, Mike Baksa, attended a seminar sponsored by the Pennsylvania School Boards Association given by a presenter with a law degree from Harvard, a facilitator who was a professor with a Ph.D. in the history of philosophy of science. They discussed the issue because it was a legitimate issue.

During that seminar, Mike Baksa heard the view expressed that it would be useful and good science education to at least introduce a discussion of creationism into the biology curriculum. More importantly, Your Honor, the evidence will show that nothing came of those questions.

During his tenure as board curriculum committee chair, Alan Bonsell never asked for any change to the biology curriculum, the text or instruction. He met with the science teachers in the fall of 2003 and learned that they didn't teach origins. It was too problematic. They focused on change within species. They mentioned creationism, but they didn't teach it, that's what they told him, because they thought it would be illegal. And that was the end of the matter. He asked legitimate questions. He got legitimate answers. That was the end.

When Bill Buckingham tried to hold up the purchase of the basal text in August of 2004, the text authored by one of the plaintiffs' experts, Bonsell voted against that because he believed the students should have the book recommended by the science faculty, quite apart from whether the board approved the use of Pandas and People.

And on the night, the very night that the board approved the curriculum change at issue here, when the science faculty expressed concerns that the inclusion of the mention of intelligent design in the curriculum would require them to teach it, although they did not teach origins, it was Bonsell who appended the note to the curriculum which made it clear that they would not be required to teach intelligent design theory.

He did that because he understood they did not teach origins, and they understood that intelligent design theory, as indicated by the subtitle of the book, Of Pandas and People, deals with the question of biological origins.

Your Honor, the evidence will show something very critical in this case, that Bill Buckingham did not exercise a determinative impact on this policy-making process. Not at all. In fact, the evidence will show that the board listened to the science faculty more than it listened to Bill Buckingham.

Bill Buckingham wanted the text, Of Pandas and People, approved with the basal text. He wanted it purchased with school money. He wanted it used in the classroom. He wanted the intelligent design theory presented side by side with evolutionary theory as if in dialogue. The teachers objected, and the board agreed with the teachers.

Now, it's true at the end of the day the board didn't agree with everything the teachers said. The board believed that intelligent design was not creationism. They knew what that was, the Book of Genesis. They concluded that intelligent design was science. They looked at the text of Pandas and People. That's not the Book of Genesis.

They believed it was a legitimate educational goal to make students aware of the existence of another scientific theory, but they agreed with the teachers' objections that for practical reasons, students shouldn't be taught intelligent design theory.

Your Honor, the evidence will also demonstrate that the board quite rightly concluded that its modest curriculum change would, in fact, enhance the biology curriculum and that the primary effect of their policy would be to advance science education, not religion.

Defendants' expert will show this Court that intelligent design theory, IDT, is science, a theory that's advanced in terms of empirical evidence and technical knowledge proper to scientific and academic specialties. It is not religion. This expert testimony will also demonstrate that making students aware of gaps and problems in evolutionary theory is good science education. It's good liberal education.

Dr. Michael Behe will offer you his opinion in this case. He will explain the basis for his opinion that the insights into the biochemical complexity of the cell, made possible by modern microbiology, have undermined the claims made for natural selection, the mechanism at the center of evolutionary theory.

Likewise, Dr. Behe will explain that evolutionary theory does have gaps and problems and that it's good science education to make students aware of those gaps and problems, make them aware of the intelligent design theory.

The evidence will show that Dr. Behe takes these positions and posits his thesis of irreducible complexity pointing to design not because evolutionary theory is inconsistent with his religious beliefs. It's not. Not because he believes in creationism. He doesn't. And as he'll explain, creationism and intelligent design are two very different things. Dr. Behe takes these positions because the empirical evidence points in that direction.

You will also hear testimony from Dr. Scott Minnich. Dr. Minnich received his Ph.D. from Iowa State University in 1981. He was a post-doctoral fellow at Purdue and then Princeton. Since 1987, he has taught microbiology extensively at the undergraduate and graduate, including medical school, levels.

Dr. Minnich will testify that IDT is science, not religion. He will explain that design principle, design theory, drives his sophisticated research in the lab. He will testify that Of Pandas and People is a good text, a little dated, but one that asks critical questions about the mechanism of natural selection, which is a centerpiece of evolutionary theory, that it makes students aware of gaps and problems in the theory. Dr. Minnich will testify that this is good science education and it's good for science.

Dr. Dick Carpenter will also provide testimony. He's an assistant professor in educational leadership at the University of Colorado. He's an expert in educational policy and practice. He will testify that DASD's curriculum policy advances legitimate secular educational goals, promotes critical thinking, gives students a fuller understanding of evolutionary theory, including its strengths and weaknesses, something that's mentioned in the basal text authored by the plaintiffs' expert.

In this way, he'll show that Dover's modest curriculum change actually brings it more into line with Pennsylvania's academic standards, which require that students be able to critically assess the status of existing theories, and, insofar as it helps students grasp the controversy that can surround science, points to a goal that's included in the Santorum amendment, the No Child Left Behind Act.

Dr. Steven Fuller will also testify for the defendants. He has a master's in philosophy and history of science from Cambridge University, a Ph.D. in the philosophy of science from the University of Pittsburgh. He's the author of eleven books, over 200 articles and chapters and books that have been peer-reviewed.

He was the first post-doctoral fellow in the history of philosophy of science at the United States National Science Foundation, the first research fellow in the Public Understanding of Science at the United Kingdom's Council for Economic and Social Research. His works have been translated into 15 languages. He has been a visiting professor in the United States, Sweden, Denmark, the Netherlands, Israel, and Japan.

Dr. Fuller will testify that intelligent design is science, not religion, that the convention of methodological naturalism, which some would use to disqualify intelligent design theory from science, is by no means a necessary feature of scientific inquiry, and that scientific progress has taken place without any commitment to methodological naturalism.

He will also testify that efforts to disqualify IDT from science based upon causation or testability or other so-called demarcation criteria, including so-called methodological naturalism, are inherently flawed. Dr. Fuller will explain that intelligent design theory is not creationism. It is not inherently religious. He will also explain, for that matter, that any number of phenomena we now understand, whether it's gravity or the wave-particle duality of quantum mechanics, were once thought to be supernatural.

Finally, Dr. Warren Nord will testify for the defendants. Dr. Nord is a professor in the philosophy of education and philosophy of religion at the University of North Carolina Chapel Hill. Nord will testify that intelligent design theory is not religion. He will explain that efforts to exclude intelligent design theory from science based on so-called methodological naturalism actually result from a philosophical naturalism which is, itself, a nonscientific principle.

He will also explain that from the standpoint of the philosophy of education, liberal education, the thesis posited by intelligent design theorists gains greater strength when seen in a larger context, whether the fine-tuning of the universe which physicists looked at so statistically improbable but so necessary to support life on earth or work in the area of phenomena such as the mind.

Dr. Nord will also explain the basis for his opinion that the board's modest curriculum change is a step in the right direction for science education and consistent with national science education standards precisely because it makes students aware that there are scientific disputes over claims advanced by rival theories, something students should know in order to have a realistic sense of this critical dimension of scientific progress.

Taken together, this expert testimony will confirm the defendants' judgment by showing that intelligent design theory is not creationism. Indeed, it does not even require the action of a supernatural creator, that intelligent design is not religion or inherently religious, that intelligent design theory is science. It's a theoretical argument advanced in terms of empirical evidence, technical knowledge proper to scientific and academic specialties.

Indeed, the evidence will further show that intelligent design theory is really science in its purest form, the refusal to foreclose possible explanations based on the claims of the dominant theory or the conventions of the day, to proceed from the same sort of perspective that led Newton to explore and ultimately explicate gravity.

It shares the attitude of those who worked in the field of quantum mechanics, who posited the wave-particle duality, despite the fact that to some it smacked of the supernatural. It shares the determination of scientists who this very day will look at paranormal phenomena or phenomena that defy our current understanding such as the mind.

For just these reasons, the defendants' expert testimony will show that Dover's modest curriculum change embodies the essence of liberal education, an education that frees the mind from the confines, the constraints, the conventions of the day, and, in so doing, promotes the curiosity, the critical thinking, the quest for knowledge that has served our country so well.

In conclusion, Your Honor, I respectfully submit that the evidence will show that the primary purpose and primary effect of Dover's modest but plainly significant curriculum change is to advance the very sort of legitimate educational goal which the United States Supreme Court recognized in Edwards versus Aguillard, what the Supreme Court of the United States acknowledged, with approval, that school boards could quite properly require the teaching, never mind mention, about the theories of origin for legitimate secular educational purposes.

Your Honor, we look forward to presenting a defense in this case. Thank you.

THE COURT: All right. Thank you, Mr. Gillen. Before we get to our first witness on behalf of the plaintiffs, let me welcome our spectators to this and the parties, of course, and the media to this important case.

We're going to be in -- although this is a relatively large courtroom, we're going to be in fairly close quarters for a while. Those of you who are going to stick around will be here for the next week and for, it looks like, all of October, as well.

I have been struck in the pretrial proceedings with the sense of decorum on the part of the parties and the spectators. I believe that that will continue, so it's not necessary for me to say much besides I want you to do that and respect the witnesses on both sides as they testify and avoid any expressions that would disrupt the Court in any way. I certainly haven't seen that, and I don't expect to see that in this case.

You would do me a favor and you would do counsel a favor and the parties a favor if you would restrict your movement in and out of the courtroom during testimony to a minimum. That's not to say that you can't leave, but don't leave lightly just because you're bored and you want to go out into the hallway and then filter back in again. If you must leave, that's certainly acceptable, but we want to keep the traffic to a minimum because I think that that keeps us better focused.

We will take breaks at reasonable intervals, and I assure you we'll have lunch, as well, a lunch break, and we will take this in a way that is deliberate and yet recognizes that we're going to be here awhile and we have plenty of time to try this case.

So with that -- now, Mr. Rothschild, you're not going to move for the admission, I don't think, at this point, of any exhibits, or are you with respect to your opening? Do you want to do that?

MR. ROTHSCHILD: No, I'm not, Your Honor.

THE COURT: I assume not. With that, then we can start with your first witness.

MR. WALCZAK: Plaintiffs call Kenneth Miller.

KENNETH R. MILLER, PH.D., called as a witness, having been duly sworn or affirmed, testified as follows:

THE CLERK: Please be seated and state your name. Please spell your name for the record.

THE WITNESS: Sure. Good morning, Your Honor.

THE COURT: Good morning.

THE WITNESS: My name is Kenneth R. Miller, K-e-n-n-e-t-h, initial is R., M-i-l-l-e-r.

THE COURT: You may proceed.



Q. Good morning, Dr. Miller.

A. Good morning.

Q. Where do you live?

A. I live at 142 Martin Street in Rehoboth, Massachusetts.

Q. What do you do?

A. I'm a professor of biology at Brown University.

Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 214. Do you recognize this document?

A. Yes, I do. It's the first page of my resume or, as we academic guys call it, my curriculum vitae.

Q. Is this a fair and accurate representation of your background?

A. Yes, it is. The individual document is a few months out of date, but, yes, that is.

Q. I'd like to use this to go over your background. Focusing first on your education, you graduated from Brown University in 1970?

A. That's correct.

Q. And then you got a Ph.D.?

A. At the University of Colorado in 1974.

Q. And did you do a Ph.D. dissertation?

A. Yes, I did.

Q. And what was that on?

A. The Ph.D. dissertation was on the structure and location of the coupling factor on the thylakoid membrane or, as I once explained to my mother, I'm trying to figure out and tried to figure out in the thesis how plants capture the energy of sunlight and convert it into chemical energy and food.

Q. Dr. Miller, I'm likely going to have to ask you to explain things the way you would to your mother a number of times during this testimony. Please bear with me.

A. Thank you, sir. I will keep that in mind.

Q. I'd like to focus now on your professional experience concerning your academic appointments. After you got your Ph.D., what did you do next?

A. I went to Harvard University to join the faculty as a junior faculty member, and I spent two years there in the position of lecturer in biology and then four years as assistant professor of biology.

Q. And then in 1980 you went to Brown University?

A. That's correct. I got a job offer from my undergraduate alma mater and jumped at the chance and returned to Brown in 1980. Two years later I was given tenure and promoted to associate professor, and four years after that, I was promoted to full professor, which is a rank I still hold.

Q. And you continue to teach at Brown today?

A. Yes, sir, I do.

Q. And you've been there consistently since 1980?

A. I have left town once or twice, but, yes, sir, I have been there consistently.

Q. And what do you teach at Brown?

A. I teach courses in molecular and cellular biology, and I also teach what is, in many years, the largest course that a university gives freshmen, an introductory to general biology course.

Q. Does that freshman-level course include a section on evolution?

A. Yes, it does. No course in biology would be complete without it.

Q. Dr. Miller, are you still involved in scientific research?

A. Yes, sir, I am. Not as much as I used to be, but I have a small lab and I have a couple of undergraduate students who work with me and I continue to do research.

Q. And remembering that I'm on your mother's level, could you just briefly describe the area of your scientific research?

A. Well, I continue to be interested in the structure and function of biological membranes. My main research tool is the electron microscope. And the main area in which I work right now is the process by which proteins go through, pass through biological membranes. And that's very important to cell biologists because it concerns basically how things get where they're supposed to be. Cells depend upon proteins getting to the proper destinations, and I'm trying to work on part of the mechanism of how they get there.

Q. Now, directing your attention, again, on the first page still, to professional service and associations, it appears that you are a member of a number of professional associations, for instance, the American Association for the Advancement of Science. What is that?

A. The American Association for the Advancement of Science is, I believe, the largest scientific organization in the United States. It has tens of thousands of members. It includes scientists of all disciplines. And it probably, if any single organization can fairly be said to speak for the scientific community of the United States, it is that association. It's often called simply AAAS.

Q. And I note you're also a member of the American Society for Cell Biology. What is that?

A. The American Society for Cell Biology is one of the largest organizations of experimental biologists in the United States. It has seven or 8,000 members. As many as 12,000 people attend its annual meetings. And it is one of the, as I said, major organizations promoting experimental biology in the country.

Q. Now, I note you have held a number of positions as -- for instance, the chair of the American Society for Cell Biology program committee. It looks like you've had two stints as the chair of the education committee. What do those committees do?

A. Well, the program committee is the committee that organizes the scientific program of the annual meeting with more than 3,000 contributed talks and papers. And when I chaired the program committee, I was, in effect, the director of the scientific meeting picking the major talks, the symposia, organizing the poster sessions and so forth.

The education committee is a committee that promotes and supports scientific education at all levels. Almost all of our members teach at one university level or another, whether it's at the graduate level, perhaps in medical school or undergraduate colleges, and we organize programs to help our members stay abreast of new developments in teaching technology and to promote science teaching and education.

The committee also has, as does the society, a very strong interest in promoting K through 12 science education throughout the country, and we often weigh in on important issues that we believe affect the future of science education in the country.

Q. How do you become a chair of these committees?

A. I'm often -- when one is named a chair, one receives both congratulations and condolences at the same time. I believe that I was named the chair of the program committee because the newly-elected president of the society in that year, Susan Gerbi, was a colleague of mine and she wanted to leave her imprint on the scientific meeting, and therefore she was very comfortable with me heading the program committee. You might say that I got that job through the old girl network.

The education committee, however, is a different matter. I have been interested in education for quite a long time. I spend a lot of my time and energy teaching at the university level, and I've also been involved in writing textbooks at both the college and the high school level.

My colleagues on the committee and colleagues in the society are aware of that and several elected councils of the society thought that I would be basically the best person to chair that committee.

Q. I note you're also the past editor of a number of journals, for instance, the Journal of Cell Biology, the Journal of Cell Sciences, Advances in Cell Biology. First of all, what are these publications?

A. Well, the two journals that you mentioned are two of the leading journals in the field of cell biology. And I served a term as one of a panel of editors on each of these journals, and my function in that respect was to take manuscript submissions, scientific papers that were forwarded to me by the editor-in-chief of the journal, papers that had been submitted for publication, pick out referees or reviewers, often two or three or four scientists to critique those, look for scientific flaws, decide if they should be revised and decide if they have publishable quality. They would then report back to the editor.

I would then make an initial decision, all editors do, on whether or not they were suitable for publication, whether or not they needed to be revised, whether or not they should be rejected, and forward that decision to the editor-in-chief, who would then make the final decision.

In the case of the series Advances in Cell Biology, this was a series of monographs, which are papers, review papers written by individual scientists. And in that case, my authority was somewhat greater and somewhat different in that I solicited manuscripts from various scientists who were doing cutting-edge work. I asked them to summarize their work and the work in the field, and I then bundled these 10 or 15 papers a year into this proceeding, which was designed to keep scientists abreast of cutting-edge developments in the field.

Q. I'd like to direct your attention to Page 2 of your curriculum vitae. There's a topic there, it says, Scientific Papers. There are a lot of listings on Pages 2 through 5. Do you know how many are listed there?

A. Actually, I haven't counted them. I think it's in the neighborhood of 45 to 55, somewhere in that vicinity.

Q. Now, the heading there says, Scientific Papers. Is there some particular meaning to that?

A. Yeah, most scientists would understand it right away. What this means, in more specific terms, is that these are scientific research papers that have been published in peer-reviewed scientific journals.

Q. And this concept of peer review, for us non-scientists, what does that mean?

A. Peer review is the essence of the scientific process. It means, basically, that when you've done research that you think is sufficiently important and rigorous to merit attention and publication, you send it off to a journal. The journal will then have several of your colleagues in the field, people who can be disinterested, objective, and critical evaluators, tear your paper apart, if they possibly can, try to find flaws, try to find problems with it. The editor will then mediate whether your paper is going to be rejected or perhaps revised a little bit.

But it is the essence -- peer review is the essence of the give and take that goes forward in the scientific community to try to ensure, especially in leading journals, that the papers that are published are scientifically accurate, that they meet the standards of the scientific method, and that they are relevant and interesting to other scientists working in the field.

Q. If you could turn to Page 6. I note there's a heading there that says, Secondary Textbooks and Teaching Materials. And if you could flip over to Page 7 first. At the top there it says, College Textbooks. Are you the author of some college textbooks?

A. Yes, yes, I am. Together with a colleague named Joseph Levine, I have coauthored two college textbooks in general biology that were published by the D.C. Heath Company. That company has now gone out of business, and those two textbooks which were published in 1990 and 1993 are out of print. At the peak of their usage, they were used by more than 200 colleges and universities around the country.

We are currently at work on a new college-level manuscript, and we hope to have that published in the years ahead. I notice -- I mentioned the CV was a little bit out of date -- it says, Expected publication, 2005, W. H. Freeman Company. We and our publishers, Freeman, have had a parting of the ways because we had a fundamental disagreement on what this book should be like, so we are currently considering other offers of publication. So this book will not be published this year.

Q. You mentioned that this book is not still in use at the college and university level. Why is that?

A. It's not still in use because it was last copyrighted in 1994, and by science standards, that's an ancient text. Science moves so quickly that material in a textbook that's ten years old is certainly going to be seriously out of date.

And I think that's one of the reasons why even those instructors who liked and really enjoyed working from our book would certainly not use it today, simply because there's too much science that has passed under the bridge.

Q. Now, if you would flip back to Page 6 of your curriculum vitae, I note that you have also been the author of a number of high school textbooks. When did you first start writing those textbooks?

A. To be perfectly honest, I first started writing when I was persuaded by Joseph Levine, my coauthor, that this would be a good thing to do, and we first started writing our first manuscript in 1982.

Q. And the first publication was in 1990?

A. The first publication was in 1990, so it took us eight years to go from conceiving and beginning the manuscript to our first publication.

Q. Now, I note there appear to be -- I don't know if it's a number of different editions or these are different books. Could you explain that?

A. Yeah. All of these books have been published by the Prentice Hall Company, which is now a division of Pearson Publishing. And I tried on this to list a number of different editions. The first book -- they all have catchy titles like Biology.

The first book, you'll notice, is simply called Biology, and it came out in five different editions, first through fifth. The second book is called, Biology, the Living Science. It came out in two editions. The third book, we liked that original title, I guess, and just went back to plain old Biology, but that is an entirely different book from the earlier Biology.

High school teachers, I have to say, have a way to distinguish these books. They name them by the animals on their cover. So high school teachers will know the first book is the elephant book, the second book is the lioness book, and the current book, the one near the bottom, as the dragonfly book.

So altogether, these books have -- there have been three different books, and they have appeared in the neighborhood of 11 or 12 different editions.

Q. I show you what's been marked as Plaintiffs' Exhibit 31. Is this the cover of the dragonfly book that you mentioned?

A. Yes, sir, it is.

Q. And this is the 2004 edition?

A. This, I believe, is the cover of the 2004 copyright, correct.

Q. And are you working on yet another edition of this book?

A. Yes, sir. This weekend Joe and I were working on final revisions for what will be a 2007 copyright of this book, and we are about six months away from starting on a complete rewrite of the entire textbook.

Q. Is this a textbook that's used in the Dover Area School District, to your knowledge?

A. My understanding, sir, is that it is.

Q. And is it used anywhere else besides Dover?

A. It is used in each and every one of the 50 states of the United States and several foreign countries.

Q. Do you know how many high schools use your biology book?

A. I can't give you a number in terms of the number of schools, but I have been told by my publisher that about 35 percent of the high school students in the United States use one or another of the various textbooks we've been discussing.

Q. And what topics are covered in this biology textbook?

A. Soup to nuts. We start out with the nature of science, the nature of biology. We talk about the structure of the cell, cell biology. We talk about molecular biology and genetics, ecology, evolution. We do a phylogenetic survey, which is a biologist's term for looking at all the various categories of living things, and we conclude the book by looking at the various systems of the human body.

So we try to provide in the book not a curriculum, but a resource bank from which teachers can draw as they put their curriculum together for the types of courses that students need to take in Pennsylvania and other states to meet state requirements.

Q. And as part of your process in writing and developing these books, are you familiar with, say, the competition, competing high school biology textbooks?

A. Certainly. It is a free market and a competitive market, and it always pays to keep an eye on the competition, so I keep an eye on the other books, as well. And they do the same for us, of course.

Q. And do you send your manuscripts, if that's the right term, to high school teachers for feedback about whether the subject is presented right or for any reason?

A. Yes, we do.

Q. And why do you do that?

A. We do that for a couple of reasons. Joe and I are presumed to know the scientific field, but every time we write a chapter and we edit our chapters for each other, we, first of all, send it to a scientific expert to make sure that we've got the science right. Even if it's my own field of cell biology, I'm eager to see a critical opinion from another researcher to see if I got it right.

But we also send these chapters to individual experts in secondary school education, individual high school teachers, and focus groups or panels of high school educators to critique whether or not we have explained things in a way that they think their 14- and 15-year-old students will understand, whether the text is interesting, and whether the text is going to be helpful to them in the classroom in the goal of getting students turned on to science.

Q. So do you make changes in each subsequent edition in response to the feedback you've gotten from high school teachers?

A. Yes, we do, quite a few changes.

Q. Now, isn't it unusual for a research scientist to also be a high school textbook author?

A. I suppose it is.

Q. Why do you do it?

A. Originally, when I was approached by Dr. Levine, I told him to take a hike. I said I wasn't interested in this. At the time I was a few months short of a tenure decision, and the only thing that matters at a research university is getting my scientific papers out, getting my grants funded, and getting the respect of my colleagues in the field.

But he managed to show me a few existing books that were used in high schools, and he pointed out at the time I had two young daughters and most scientists would like nothing more than to see their children go into science.

And as I leafed through the books, they were all perfectly okay, but I found two problems with them. One is they were dreadfully boring. I couldn't look at these books and imagine why anyone would want to go into science. And then the second thing is, they sort of gave the impression that everything had been discovered. And any person in experimental science knows that's just not true.

So I called Joe back, and I said, Joe, let's do this, because I'd like to write a book with you that would turn kids on to science, that would tell them about the great unexplored territory that lies out there and would tell them that the most interesting thing one can possibly do, short of a career in law, of course, is to have a career in science.

Q. Have you ever testified in court before as an expert witness?

A. No, sir, I have never testified in court as an expert witness.

Q. Have you testified in court on the subject of biology and evolution as you will be doing today?

A. Well, earlier, actually last year, I did testify in federal court as a fact witness in a trial that related to the teaching of evolution.

Q. And what was that case?

A. I believe you'll correct me if I have this slightly wrong, but the case is known as Selman versus Cobb County. And it concerned a case in which the Cobb County Board of Education had attached a warning sticker to all textbooks that contained material about evolution. And this warning sticker or this label had a three-sentence admonition to students.

A number of parents, as I understand the case, a number of parents in the district objected to this sticker being placed on textbooks. They filed a lawsuit in federal court. I was contacted by attorneys for the plaintiffs. They pointed out that my book was one of the ones that had had the sticker placed on it, and they asked me if I could come as a witness of fact to tell the Court how textbooks are put together, what the decisions were that I made into my textbook, and perhaps also to comment on whether or not I thought the sticker was an appropriate tool to advance education.

Q. And you did, in fact, testify, I believe it was in November of 2004, in the Selman case?

A. Yes, sir, that's correct, I did.

Q. I'll ask you about your experience with creationism and creationists. Have you been involved with the creationist movement?

A. I suppose you could say I have been involved with the movement, yes.

Q. And could you tell us how you got into this?

A. The very first year that I taught at Brown University, in the fall I taught part of a very large freshman-level introductory biology course. So a lot of students saw me as a new professor at Brown, and I guess they rather liked my energy, enthusiasm, and teaching style.

And in the spring, when I was not teaching, I was setting up my research laboratory, a group of students came to me and they said, we really like your lectures in Bio 11, which was the course. I said, gee, thanks a lot.

And they said, there's a fellow whom the Christian students association is bringing to campus. His name is Henry Morris. He is the founder and the president of the Institute for Creation Research in California, and he has dared any scientist on campus to debate him. You're pretty good at giving lectures, why don't you debate this guy? And at first I told the students, no, I'm not interested. And they said, why? And I said, because I'm a cell biologist, I'm not an evolutionary biologist. I want to set up my research lab, so please go away.

But they were very persistent, and they started to pester me and say, well, does that mean this guy is right? I said, no, it doesn't mean this guy is right. And they said, well, if he's not right, why don't you debate him?

So finally I agreed to go ahead and do this. I had a couple of conditions I attached to doing that. I'm glad I did. One of those conditions was that the students would get me audiotapes, books, and pamphlets of the so-called creationism or creation science movement so that I could see what the arguments were that I was likely to face.

And my recollection is I spent almost four solid weeks listening to the arguments presented, looking up the arguments, because many of them were in geology and physics and astronomy and way outside of my scientific field, making sure that I understood them and preparing for that debate.

And we finally debated in April of 1981. We had the debate, as it turns out, at the largest building on our campus, which is the hockey rink, and it drew nearly 3,000 people. It was very interesting. And I believe, on the basis of reports of a wager made by the science writer and the religion writer for the Providence Journal, I believe that I prevailed in the debate, though one can never say for sure. And over the next several years, I engaged, I think, in three more debates with scientific creationists.

Q. And have you also written articles critiquing creationism? And I guess I would direct your attention to Page 5 of your curriculum vitae, and there's a section, Articles in Defense of Scientific Integrity.

A. Yes, I have. And this section lists three of them. And these date from the period when I was debating scientific creationists in the early 1980s. I wrote an article for teachers in the American Biology Teacher. I took some of the arguments I had faced in the debate and I put answers out in a small journal called Creation/Evolution so that other people who might engage in debate could have the benefit of my research and experience on this.

And I also wrote an article for -- an edited volume edited by the very distinguished anthropologist, Ashley Montagu, on scientific creationism in 1984. So, yes, I have written on the subject.

Q. I'm going to ask you about your experience now with intelligent design. Have you been involved in debates, public debates, over the notion of intelligent design?

A. Yes, sir, I have.

Q. And when was the first one?

A. Well, the first one I didn't actually know was going to be about intelligent design. I was approached by an organization of -- I believe of largely Evangelical Christians known as the American Scientific Affiliation, and they asked me if I would come to their summer meeting, I think it was in Asheville, North Carolina, it was in North Carolina, and debate a biochemist from Lehigh University on the subject of a textbook for public schools called Of Pandas and People.

And I had never heard of the book at the time. They mailed me a copy. I read through the book. And I was unfamiliar with the person who opposed me in debate at that time, but his name was Michael Behe, and as I mentioned, he's a biochemistry professor from Lehigh University. And that was the first place where I heard the term "intelligent design" used in place of the more familiar creation science, which I had debated with various people in the early 1980s.

Q. Was this the only debate you had on intelligent design?

A. No, sir, it isn't. And I'm sorry that I cannot give you an exact number, but if you count point counterpoint debates in print, radio debates, and debates in person, I would expect that probably I have debated on the issue of intelligent design 12 or 13 times, quite a few more times than I debated scientific creationism.

Q. And you have also written articles about intelligent design. I direct your attention to Page 6 under Essays and Reviews. Now, are some of these articles about the concept of intelligent design?

A. Yes, sir, they are. The 1994 article called Life's Grand Design in Technology Review actually foreshadowed many of the arguments of intelligent design, so it clearly was on that issue.

And then the last three articles that are listed, the one in Natural History magazine, the one in 2003 in the volume edited by Neil Manson, and the one in 2004, which is listed there in press but now, in fact, has been published -- I said this was just a tad out of date -- all of these deal with intelligent design.

Q. I want to talk about one more listing on your curriculum vitae, and that's on Page 7 under General Audience Books. There is one book there that I think has a provocative title, Finding Darwin's God. What's that about?

A. I meant the title to be provocative. This is a general audience book or a trade book, as publishers call it. And one of the experiences that I had over the years appearing in public and talking about evolution is that many people would tell me that no matter how compelling the scientific arguments were that I made in favor of evolution, they were bothered by the fact that it was perfectly obvious that evolution was an inherently atheistic or God-denying theory.

And I'd just sort of shake my head and shrug and say, I don't think so, and point out the fact that I'm a person of faith and a regular churchgoer, and I certainly don't see any conflict. And they would ask me to explain, and I would explain. Another day I would explain, another day I would explain again. And finally I decided, you know, I should probably write a book about this because a lot of people are interested.

So I wrote a book called Finding Darwin's God, and the subtitle of that book I think is more revealing of content, and that is, A Scientist's Search for Common Ground Between God and Evolution. And what I tried to do in the book was twofold, first to explain why science, sciences and the scientific community, find evolution to be so useful, so valuable, and so compelling as a scientific explanation, and then, secondly, to explain how a person of faith -- although I'm a Roman Catholic, I tried to construe this in a vary broad way so that I would say how a person following any of the great Abrahamic religions could appreciate evolution in the context of their faith. And I hope very much I was successful in doing that.

Q. Now, that's not a scientific publication, you said that's a trade publication?

A. It certainly is not a scientific publication. Everything that a scientist writes or says is not necessarily a scientific statement or a scientific publication.

MR. WALCZAK: Your Honor, at this time we would proffer Dr. Miller as an expert in biology, evolution, instructional biology materials for high school students, creationism, and intelligent design.

THE COURT: All right. Thank you. Cross-examination?

MR. MUISE: Your Honor, pursuant to the stipulation of the parties, we would agree that the experts are qualified to testify within their area of expertise, the only exception being plaintiffs' expert Barbara Forrest, which we will then, at that time, take the opportunity to voir dire. But we don't have any objections based on that stipulation.

THE COURT: I understand. Thank you, Mr. Muise. You may proceed. And he is admitted for that purpose for the record.

MR. WALCZAK: Thank you.

THE WITNESS: Thank you, Your Honor.


Q. Dr. Miller, I want to ask you five questions to elicit your opinions about the big issues in this case. Do you have an opinion about whether evolution is a testable theory that is accepted by the scientific community?

A. Yes, sir, I do.

Q. And what is your opinion?

A. My opinion is that evolution is an eminently testable theory and that it is broadly and generally accepted by the scientific community.

Q. Do you have an opinion about whether intelligent design is a testable theory that is accepted by the scientific community?

A. Yes, I do.

Q. And what is that opinion?

A. My opinion is that intelligent design is not a testable theory in any sense, and that as such, it is not generally accepted by the scientific community.

Q. Do you have an opinion about whether intelligent design is or even can be properly considered a scientific theory?

A. Yes, I do.

Q. And what is that opinion?

A. My opinion is that intelligent design is not science, and therefore it cannot be construed as a scientific theory in any sense whatsoever.

Q. Do you have an opinion about whether intelligent design is a particular religious view, namely a form of creationism?

A. Yes, sir, I do.

Q. And what is that opinion?

A. I believe that intelligent design is inherently religious and it is a form of creationism. It is a classic form of creationism known as special creationism.

Q. Do you have an opinion about whether the four-paragraph statement read by the Dover School District promotes students' understanding of evolution in particular and science generally?

A. Yes, I do.

Q. And what is your opinion?

A. I think the statement by the Dover Board of Education falsely undermines the scientific status of the theory of evolution, and therefore it certainly does not promote student understanding or even critical thinking, and I think it does a great disservice to science education in Dover and to the students of Dover.

Q. Let's now explore the basis for your opinions. What is science?

A. You ask a good question. It's useful, I think, to parse it to where the word comes from. The word "science" comes from the Latin word scientias, which means knowledge. And in the most general sense, the word "science" is sometimes used to just say learning systematic knowledge, for example, library science or political science.

But I think that in the context in which the word "science" is going to be used in this case, what we mean by "science" is what we would call natural science, sciences such as chemistry, physics, and astronomy. And natural sciences I think are best described as the systematic attempt to provide natural explanations for natural phenomena.

Q. Are there rules for scientific inquiry?

A. Yes, there are.

Q. And what are these rules?

A. Well, you just heard one of the rules in the definition of science, which is that science tries to provide natural explanations for natural phenomena. So one of the most basic rules of science is that we tend -- what we require, the practitioners of science seek their explanations in the world around us, in things we can test, we can observe, and we can verify.

Now, there are certain rules of procedure, as well. And among those are that scientific inquiry must be open, that it must be subject to duplication, replication, test and examination by other scientists. For example, I could never publish a result saying I had made an observation on a particular protein without also telling people what my methods were and how I made that observation. And the point is to make my work and my observation testable.

And then the final and sort of open rule basically is that science is always an activity in which everything in science is open to critical examination, replication, peer review, and discussion by other scientists.

Q. Is this just a view held by Professor Miller?

A. No, I don't think so. I think the way I have described science and the process of science would be generally held by most members in the scientific community.

Q. I'd like to direct your attention to what's been marked as Plaintiffs' Exhibit 649. Do you recognize this publication?

A. Yes, sir, I do.

Q. I note at the bottom it says, National Academy of Sciences. Now, this is an organization that we're going to be hearing about repeatedly. What is the National Academy of Sciences?

A. Well, if my recollection serves me well, the National Academy of Sciences is an organization that was established by act of Congress, I believe when Abraham Lincoln was president, and it consists of the elite and most accomplished scientists in every scientific field.

One of the greatest honors that an American scientist or, actually, even a foreign scientist, because we have foreign associate members in our national academy, one of the greatest honors that a scientist can receive is to be tapped for membership in the National Academy of Sciences.

I believe the National Academy of Sciences is also charged with advising the president and the Congress on matters of scientific interest and importance.

Q. Are the publications of the National Academy of Sciences something that are reasonably relied on by scientists in the field?

A. Absolutely, yes.

Q. I'd like to direct your attention to Page 27 of Exhibit 649. I've asked you before to highlight a passage on this page. Is that correct, Dr. Miller?

A. Yes, you have.

Q. Could you please read for the record the highlighted passage?

A. Be glad to. This is the opening of the third section of this book, and it opens basically by defining science. And it says, and I quote, Science is a particular way of knowing about the world. In science, explanations are restricted to those that can be inferred from confirmable data, the results obtained through observations and experiments that can be substantiated by other scientists. Anything that can be observed or measured is amenable to scientific investigation. Explanations that cannot be based on empirical evidence are not part of science.

Q. Do you agree with that statement?

A. I certainly do.

Q. How long have these rules of science been in effect?

A. I'm tempted to say forever, but I think certainly for the last 200 years of contemporary science, the notion that science -- in other words, all of the 19th Century and all of the 20th Century and now into the 21st -- the notion that science can only deal with empirical data, what we can see, what we can observe, and what we can measure, has been part of the common understanding of science in all people in all cultures.

Q. So science doesn't -- these rules don't just apply in the United States?

A. No, sir, they don't. I think science might be the closest thing we have on this planet to a universal culture, and these rules apply everywhere.

Q. Why are these rules important?

A. These rules are important because if you don't have these rules, you don't have science. The entire -- human beings are fallible, and I mentioned that science is a human activity. It's a systematic search for natural explanations for natural phenomena.

And if you invoke a non-natural cause, a spirit force or something like that in your research and I decide to test it, I have no way to test it. I can't order that from a biological supply house, I can't grow it in my laboratory. And that means that your explanations in that respect, even if they were correct, were not something I could test or replicate, and therefore they really wouldn't be part of science.

Q. So supernatural causation is not considered part of science?

A. Yeah. I hesitate to beg the patience of the Court with this, but being a Boston Red Sox fan, I can't resist it. One might say, for example, that the reason the Boston Red Sox were able to come back from three games down against the New York Yankees was because God was tired of George Steinbrenner and wanted to see the Red Sox win.

In my part of the country, you'd be surprised how many people think that's a perfectly reasonable explanation for what happened last year. And you know what, it might be true, but it certainly is not science, it's not scientific, and it's certainly not something we contest. So, yes, those rules certainly apply.

Q. Does science consider issues of meaning and purpose in the universe?

A. To be perfectly honest, no. Scientists think all the time about the meaning of their work, about the purpose of life, about the purpose of their own lives. I certainly do. But these questions, as important as they are, are not scientific questions.

If I could solve the question of the meaning of my life by doing an experiment in the laboratory, I assure you I would rush off and do it right now. But these questions simply lie outside the purview of science. It doesn't say they're not important, it doesn't say that any answer to these is necessarily wrong, but it does say that science cannot address it. It's a reflection of the limitation of science.

Q. Could you briefly tell us, how is it that scientists do their work? How is it that you approach a particular problem?

A. There are probably as many ways to approach scientific problems as there are scientists. But I think one of the key questions, one of the key aspects of this is thinking of a question. Now, that's, in many ways, the hardest thing to do. But what we try to do is to look at the natural world and try to narrow down a specific question from the point of view that we can develop a very specific testable hypothesis about that question.

And in many ways, that's the greatest art of being a scientist, because no one tells you how you come up with good questions. But a good question is one that is important, the result will be interesting to other people, other scientists, as well, it will shed light on a natural biological or physical or chemical process, and we can phrase a hypothesis about it in a way that we can actually devise a test.

And once we frame that really good hypothesis, we do an experiment, we go into the field, we look for evidence, we do measurements, we make observations, and we try to gather the data that will be sufficient to confirm or refute the hypothesis.

And if we confirm it, we don't consider it to be proven, you never prove anything in science, but we consider it to be supported, and then very often we go on and ask another tough question about the same hypothesis. If the hypothesis is refuted, we discard it, go back, think of a better idea. That's as close as I can come to a good description.

Q. So after you have the hypothesis, after you've gone and done the experimentation or observation, is there something you do with the data after that?

A. Oh, excuse me, I'm talking about the work of an individual scientist. And if you think you either have the data that refutes an important hypothesis or data that tends to support and confirm an important hypothesis, if you think this will be of interest to other people in the scientific community, you then gather up your methods, your procedures, your experimental data, might be photographs, might be diagrams, results, tables, gels that we run in the laboratory, something along those lines, and you put them into a scientific publication. You write a paper and you send that paper to a reputable, hopefully a prestigious, if you think it's important work, scientific journal, and you immediately subject it to peer review and criticism by your colleagues.

Q. Now, is this peer-review process important? Tell us a little bit of how it works.

A. It's exquisitely important. You don't have science without it. And the way in which it works is, for example, I will write up my research in the manner that I have just described and send it off, perhaps, to Nature or the Journal of Cell Biology or something along those lines.

An editor at the other end will read my work, will consult, perhaps, with other editors, try to find three or four experts in the field who are knowledgeable about the kind of work I'm doing and the questions I'm asking, send it out for review. Those people will then examine the paper. They'll look for methodological flaws. Perhaps I used the wrong reagent, perhaps I used the wrong reaction temperature. They'll look for logical flaws. Perhaps the experimental results I got don't really mean what I think they mean. And they'll also look for novelty.

And by novelty, if the work I'm doing just confirms a hypothesis that has already been abundantly confirmed, nobody really cares, and that's what I mean about novelty. They will then decide if my paper is absolutely fabulous and should go right into the journal or if it can be accepted in the journal if I make a few changes, corrections, do another experiment, or basically if I should be sent back to the drawing board saying, this is not worthy of publication in our journal.

The Journal of Cell Biology, for which I served a term as editor, had a rejection rate of about 60 percent, which meant that six papers out of ten were simply sent back saying, we're not going to publish this.

Q. So unless a theory meets these rules of science and has gone through these procedures of science, can it be accepted as a scientific theory?

A. Well, you've actually jumped from sending a scientific paper in to what constitutes a theory and how can a theory be accepted. I have never done any research so grand that I would have described in any of those papers a new theory that I have. Hypotheses, yes, but theories are a whole other level of understanding.

Theories are broad, useful, powerful generalizations that explain and unite a broad range of facts. Theories have to make testable predictions, because otherwise they're not useful as theories. If a theory is enunciated to explain a natural process, it has to make predictions that lead to testable hypotheses so that people can go into the laboratory, can make those tests, and can tend to confirm or refute the theory.

Q. But if a theory does not meet these ground rules of science, testability, observability, they are not considered scientific?

A. It's just not a scientific theory, that's correct. And my tongue-in-cheek explanation of the baseball playoffs last year falls into exactly that category. It's not a theory because it's not scientific and it's not testable.

Q. Now, this nonscientific theory, does that mean its wrong?

A. Oh, of course not. I also said, again, thinking about that silly example, a lot of people in my part of the country think that's absolutely true. Explanations that lie out of science can be true, but they're not scientific. And I think that applies to the sort of theory that you were talking about.

MR. WALCZAK: Your Honor, I know, has indicated that we'll take periodic breaks, and this is actually a good breaking point for us.

THE COURT: Yes, I think it's an opportune time for us to break. Let's break for a reasonable interval. We'll see what we'll do as far as the duration of the breaks as we go, but we'll probably take at least 20 minutes, I would say, so that people can have an ample break. We may take longer if we need to. So this will be our midmorning break, and we'll stand in recess.

(Recess taken.)


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