Posted by Ed Brayton on September 29, 2005 12:15 PM
As a measure of the desperation felt by the Discovery Institute over the case in Dover, one could hardly find a better metric than this dishonest attack piece by John West on Barbara Forrest, an expert witness for the plaintiffs in the case and the author of Creationism’s Trojan Horse. West makes it appear as though Judge Jones has declared that she is an unreliable witness. In fact, the opposite is true, but some background is necessary to understand what happened.
The TMLC attorneys made what is known as a Daubert motion to prevent Dr. Forrest from being able to testify at the trial. It’s called a Daubert motion because the controlling precedent for what type of expert scientific testimony is admissable in court is Daubert v. Merrell Dow Pharmaceuticals. In cases where experts are called as witnesses, one side may object to the witnesses of the other side based upon the standards in this case, essentially arguing that they are not qualified or bring no specialized knowledge to the case. The TMLC attempted such a tactic regarding Barbara Forrest and the DI cites a portion of the courtroom discussion concerning a portion of her expert report:
THE COURT: …Within Ms. Forrest’s testimony, I see repeated references to quotes that were apparently derived from magazine articles and third persons that look to me to be inadmissible hearsay……if… we’re going to have Ms. Forrest take the stand, or Professor Forrest, I should say, I guess, take the stand and if she is going to rely on hearsay, extracted hearsay statements from articles or narratives, I think we have a problem.
That’s not to say that she can’t testify as to – if, in fact, we get to this point and if I find it relevant, and that’s another issue altogether, and I don’t think we have to address it here – that’s not to say that she couldn’t testify if it’s otherwise relevant to what the scope of the report appears to be, which is a – sort of panoply of what intelligent design has been over the course that she’s looked at it or the course that she examined it. But these extracted statements by individuals I think are problematic. Tell me why they’re not if you view it otherwise.
MR. ROTHSCHILD: I do, Your Honor. First of all, what she is basically doing is a history of a –and I say this reluctantly – an intellectual movement.
THE COURT: Well, and it read like a magazine article to me. I might find it interesting and others might find it even entertaining, but for the purpose of an expert report, I’ll bet she hasn’t probably testified many times, if at all, as an expert witness.
And the fact it has these quotes, that it is rife with these quotes, which not only present hearsay issues but also could be taken out of context and could otherwise be objectionable, I’m simply putting you on notice that either you’ve got to contour the report to – contour her testimony, not the report, to address that, or I think you’re going to get repeated objections.
And I think, unless you come up with something that is pretty remarkable, those objections could be sustained to the extent, again, not as to the general scope of her report, but as to these extracted quotes by individuals from unverified sources.
They’re not from treatises. A lot of them were taken out of news articles, it appears to me, magazines, other things. Why isn’t that hearsay?
So what is this conversation really about? Contrary to the implication being made by John West, the discussion is not about Forrest passing on unsubstantiated rumors or anything like that. The issue is over the difference between what may be perfectly admissable in a scholarly examination of an issue but not admissable in a court of law. In particular, Forrest’s book on the subject and a portion of her expert report detailing the origins and development of the intelligent design movement relied upon the writings and speeches of the leaders of that movement, which she quoted at length. In a scholarly book or article, that is of course entirely appropriate.
But in a court of law, objections are inevitably raised to such quotations because the quote might be out of context or might be interpreted differently, but the person who said it is not available to take the stand and be cross examined. Hence, it might be called “hearsay” and be inadmissable in court. And that is the argument that the TMLC was making against her testimony and saying that the testimony should be excluded. And one would think, by reading the DI’s spin, that the Judge agreed with them. In fact, Judge Jones denied this motion. And here are the relevant portions of the judge’s order denying that motion:
In the Motion, Defendants move the Court to exclude the testimony and expert reports, including the data upon which they are based, of Barbara Forrest, Ph.D., a witness who intends to testify as an expert on behalf of Plaintiffs, pursuant to Federal Rules of Evidence 401, 403, 702, and 703. Defendants argue that Dr. Forrest brings no scientific, technical, or other specialized knowledge to this case and accuses Plaintiffs of using her as a “Trojan Horse” to bring into the courtroom impertinent matters to prejudice the Dover Area School Board (“DASB”). (Defs.’ Br. Supp. Mot. Limine at 12). In response, Plaintiffs assert that Dr. Forrest’s proffered expert testimony goes directly to the issue of the origins of intelligent design creationism, that she is qualified to testify as an expert pursuant to Fed.R.Evid. 702, that her methodology is reliable, and that her testimony “fits” the issues in this case. An initial issue to address is Defendants’ contention that Dr. Forrest is not qualified to give an expert opinion in the case sub judice. As Defendants submit, Fed.R.Evid. 702 provides, as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702.
We first recognize that there may be few experts with the particular area of expertise held by Dr. Forrest concerning the “nature and strategy of the intelligent design creationist movement.” In fact, Dr. Forrest may be the only such expert. Accordingly, there is no particular touchstone in existence regarding an individual with Dr. Forrest’s qualifications and the concept of “specialized knowledge,” as there would be for example with an expert who is an accident reconstructionist specialist or one who is versed in the medical field. However, we find nothing in the submissions to indicate at least at this preliminary stage that Dr. Forrest is not an appropriate expert witness in this case. We are in agreement with Plaintiffs that Dr. Forrest’s report makes clear that she has “specialized knowledge” on the nature and strategy of the intelligent design creationist movement, and possesses the ability to assimilate information and research topics intimately involved with the concept of intelligent design pursuant to Fed.R.Evid. 702. Therefore, at this juncture, given Dr. Forrest’s credentials, extensive research, and writings on the subject of intelligent design and the intelligent design creationist movement, we will permit her to testify at the time of trial, subject to the opportunity by defense counsel to conduct a voir dire examination on her qualifications. We reserve as we must ultimate judgment concerning her ability and the extent to which she can testify until the trial in this case.
The second pertinent rule to consider for purposes of this inquiry is Fed.R.Evid. 703. Federal Rule of Evidence 703 provides, in relevant part, as follows:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Fed.R.Evid. 703.
We recognize that Fed.R.Evid. 703 permits experts to rely on hearsay in expert reports; however, the hearsay statements present in Dr. Forrest’s report may be problematic because without more, we are unable to verify the accuracy of the statements at issue, nor can we determine whether the individual statements have been taken out of context. Accordingly, in an effort to be equitable, to balance competing concerns, and after a careful review of the submissions, we hold that to the extent that Dr. Forrest testifies and such testimony references hearsay statements found in her report, we direct Plaintiffs’ counsel to stand ready to provide the Court and defense counsel with any pertinent material cited by Dr. Forrest. In particular, we are concerned with quotations within her report attributed to certain individuals, which purport to have been taken from books and publications. Counsel can either provide the Court and defense counsel with the entire article or section, for example, or a verifiable portion thereof with the quotation at issue clearly marked for inspection. This process will allow for any statement(s) taken from publications to be verified for accuracy purposes and to ascertain whether such statement was taken out of context. Finally, we are in agreement with Plaintiffs inasmuch as they assert that Dr. Forrest’s testimony should be allowed in these areas as Defendants are free to cross-examine her concerning any and all inaccuracies present in her characterization of intelligent-design writings.
There is a good deal of irony to be found here. The text that West cites do not concern Dr. Forrest’s veracity or reliability as a witness, they concern the issue of whether a witness can quote from others without having the full context of their statements available or having the person being quoted available for cross examination. And the judge dealt with that question quite reasonably and fairly, ruling that it was not enough for the defendant’s attorney to argue that quotes might be out of context and therefore quotes are not allowed, that they must make specific arguments about the accuracy or contextuality of specific quotes as they may arise. And to that end, he ordered the plaintiff’s attorney to make all of the original documents available for examination. The irony, of course, is that by selectively quoting out of context, the Discovery Institute has tried to turn legitimate concern about out of context quotes into the wholesale bashing of a witness by a judge who in fact ruled precisely the opposite of what they are implying. Just another example of deceitful propaganda from the DI.