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Friday, September 19, 2008

Bibliography bluffing wrongly accepted as evidence in Dover decision


I discussed this issue in a previous post, and I am now raising the issue again in response to a recent Panda's Thumb post, which discusses the following statement by Casey Luskin:
. . . Judge Jones found that Behe’s claims that the immune system was irreducibly complex were refuted by a large stack of papers dumped upon him during cross-examination.

An introduction to a National Center for Science Education webpage that lists the titles of that large stack of papers (and also books and textbook chapters) says,
Scientific literature on the evolutionary origin of the immune system

This is the list of books, textbook chapters, and articles that were presented to Defense expert Michael Behe during cross-examination in the Kitzmiller v. Dover Area School District trial about the constitutionality of teaching "intelligent design." The cross-examination was conducted by Pepper-Hamilton attorney Eric Rothschild. Behe summarily dismissed the mass of scientific literature on the evolution of the immune system, despite the fact that it contradicted his previous assertion that the scientific community had "no answers" on the question. This episode was cited in Judge Jones's ruling against intelligent design, and various press accounts.

However, Rule 803(18) of the Federal Rules of Evidence says that statements in "learned treatises . . . may be read into evidence but may not be received as exhibits":
.
(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.

The courtroom testimony shows that the literature was actually presented as an exhibit and even had an exhibit number, Plaintiff's Exhibit 743:

Q. 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?

A. I'll have to look through. No, I did not.

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.

And in violation of FRE Rule 803(18), the Kitzmiller v. Dover opinion accepted this exhibit of "learned treatises" as evidence (page 78):

. . . .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." (23:19 (Behe))

Also, in my previous post on the subject, I said,

Some Darwinists have been arguing that the above rule barring learned treatises from being received as exhibits does not apply here because allegedly the issue was just the existence and authoritativeness of the publications and not whether the publications refuted Behe's claims. However, the final opinion assumed that the publications refuted Behe's claims, even though no statement from the publications was read into the record. As noted above, the final opinion said,

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 is was not "good enough."

-- and the opinion later said,

We therefore find that Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community at large.

So the ultimate issue in the opinion was not whether the publications existed and were authoritative but was whether their evidence for the evolution of immune systems was "good enough" to refute Behe's claims -- and Judge Jones assumed that the answer was "yes," even though no statement from the publications was read into the record. And as Behe pointed out, the words "good enough" were not his but were the attorney's.

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. Evidence is not supposed to be weighed by the pound.

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7 Comments:

Blogger William Wallace said...

Sad, 'cause with the propaganda, and the school board getting replaced, it became a cooperative lawsuit (NCSE and the school board were on the same side) so nobody will appeal

Friday, September 19, 2008 4:04:00 PM  
Anonymous Michael said...

Evolutionists are using the court case as a model to try and refute intelligent design.

It's interesting how the argument consisted with a major focus on the immune system rather than DNA.

Judge Jones was far from being objective, he was appointed, so you know he had an agenda...

The stack of literature was presented as a tactic to intimate and overwhelm. So that they can tell the public, there was overwhelming evidence against irreducibly complexity in the immune system. So the whole theory falls flat...

The case should be appealed, but it's costly and more than likely, that factored in and the slant that the Judge has as well.

You get this case in front of a decent Judge who goes by the rules, and this case might have had a different outcome.

Friday, September 19, 2008 11:57:00 PM  
Anonymous Anonymous said...

The simple fact is that Behe made the claim that scientific community had no answers for the evolution of the immune system. That stack proves this is not the case. You can try mucking around with legal technicalities, but all that achieves is make you look like a sleazy lawyer who is desperately reaching for ways of barring evidence that disproves your case.

Saturday, September 20, 2008 12:30:00 PM  
Anonymous W. Kevin Vicklund said...

Rule 803(18) only applies to learned treatises that are considered hearsay and thus requiring an exemption. If the learned treatise is not considered to be hearsay, there is no bar on accepting it as an exhibit.

The record in Dover is replete with examples of the lawyers arguing over whether a learned treatise should be considered hearsay (look for when they are arguing about the "truth of the matter asserted" when discussing which exhibits are to be admitted). The parties stipulated that the articles in question were admissible as exhibits. The only people you can reasonably blame here are the defense lawyers.

Tuesday, September 23, 2008 10:10:00 AM  
Anonymous Anonymous said...

Interesting. I'm no lawyer myself, but it seems that, if what the above poster has said is accurate (and, upon actually examining the link you provided about 'Rule 803(18)', it appears to me that it is), you're not only making yourself look like a sleazebag lawyer, but you're making yourself look like an incompetent sleazebag lawyer.

Tuesday, September 23, 2008 12:06:00 PM  
Anonymous W. Kevin Vicklund said...

Indeed, anonymous, look at the definition of hearsay in Rule 801.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

"truth of the matter asserted" is a legal term of art, so relying on a normal dictionary for the definition likely won't tell you what it means. In essence, it means that you can't use a statement made outside of court for it's literal meaning as evidence, except as provided by law. Wikipedia is hit and miss, but in this case offers a decent overview of how it actually works in the US. The second paragraph of the "Common Misperceptions" section is a really good overview of how "the truth of the matter asserted" is determined couched in laymen's terms.

The second common misconception is that all out-of-court statements are hearsay. This is not the case. An out of court statement may or may not be hearsay depending on the purpose for which it is offered. If the statement is being offered to prove the truth of what it asserts, then it becomes hearsay. When offered for any other purpose the statement is not hearsay. For example: Witness testifies that yesterday he spoke to Jim (who was in Vermont) on the phone and that Jim made the following statement, "It's raining in Vermont!" If the attorney is seeking to use this statement to prove that it was in fact raining in Vermont, then it is hearsay. But, if the attorney is seeking to use the statement to prove that the phone lines were working that day, or that Jim had not lost the power of speech, or for any other purpose, then the statement is not being offered to prove the truth of the matter asserted, and therefore it is not hearsay.

In this case, these 58 learned treatises where not offered to prove that their various claims about the evolution of the immune system were true, but rather that Behe was placing an unscientific burden of proof on evolution, one which he was unwilling to place on his own theory. Therefore, these articles are not hearsay, and are thus admissible as exhibits in federal court.

Tuesday, September 23, 2008 1:06:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said,
>>>>>> look at the definition of hearsay in Rule 801.

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. <<<<<<

That is a wrong definition of "hearsay" -- it implies that "hearsay" is a statement made outside of court by a "declarant" testifying at a trial or hearing, and this definition does not clearly indicate that the statement considered to be hearsay is a statement from another person who is not available to testify. Here is a law dictionary's definition of "hearsay":

second-hand evidence in which the witness is not telling what he/she knows personally, but what others have said to him/her.

-- and a law dictionary's definition of "hearsay rule":

the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party's lawyer cannot cross-examine . . .him or her. However, as significant as the hearsay rule itself are the exceptions to the rule which allow hearsay testimony such as . . . .

This rule does not even really apply to statements from learned treatises or to learned treatises entered as exhibits, and so learned treatises should not be listed under exceptions to the hearsay rule. "Hearsay" would be something like a witness's testimony about someone else's statement about the contents of a learned treatise, but in the Dover trial the learned treatises were actually in the courtroom and were available for quoting, so there was no need for a witness's testimony -- whether firsthand or secondhand -- about the treatises' contents. The treatises' contents might be considered hearsay in the sense that the authors of the treatises are not in the courtroom to be cross-examined about the treatises' contents, but that hardly qualifies as "hearsay." Anyway, regardless of the definitions of "hearsay" and "hearsay rule," FRE Rule 803(18) says that statements from learned treatises "may be read into evidence but may not be received as exhibits," which can only be reasonably interpreted as meaning that the learned treatises may not be received as exhibits of physical objects. Here is the complete statement of Rule 803(18):

(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.(emphasis added)

>>>>>>> "truth of the matter asserted" is a legal term of art, so relying on a normal dictionary for the definition likely won't tell you what it means. <<<<<<<

Legal term of art, legal term of fart, what gives the courts the right to have their own esoteric undefined jargon? The law uses weird terminology, e.g., "service of process," but at least "service" and "process" are in law dictionaries. The above definitions of "hearsay" and "hearsay rule" from a law dictionary say nothing about "truth of the matter asserted."

>>>>>> In this case, these 58 learned treatises where not offered to prove that their various claims about the evolution of the immune system were true, but rather that Behe was placing an unscientific burden of proof on evolution, one which he was unwilling to place on his own theory. <<<<<<<

This is precisely the kind of use of learned treatises that is prohibited by Rule 803(18). A physical stack of literature about immunology shows nothing about the evolution of immune systems and does not show that Behe "was placing an unscientific burden of proof on evolution." It was just bibliography bluffing or -- as Michael Behe put it -- "bad courtroom theatre."

Anonymous, you stupid dunghill, you didn't even try to explain how you think I misinterpreted the rule.

Tuesday, September 23, 2008 8:26:00 PM  

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