First , our opponents object to the jury hearing the law; now, they are
objecting to the jury hearing the facts. The jury is to pass on questions
that are agitated not only in this country, but, I dare say, in the whole
world.... The learned attorney-general started his argument this morning
by saying, we admit Mr. Scopes taught something contrary to the law. While
we admit that Mr. Scopes taught what the witnesses said that he did, but
as to whether that is contrary to the theory of the Bible should be a matter
of evidence. Possibly the prosecution are without evidence.... Certainly
no court has ever held it to be dangerous to admit the opinions of scientific
men in testimony. Jurors cannot pass upon debatable scientific questions
without hearing the facts from men who know. Is there anything in Anglo-Saxon
law that insists that the determination of either court or jury must be
made in ignorance? Somebody once said that God has bountifully provided
expert witness on both sides of every case. But, in this case, I believe
all our expert witnesses, all the scientists in the country are only on
one side of the question; and they are not here, your honor, to give opinions;
they are here to state facts....
Hays argues that expert testimony should be admitted (5th day)
Their theory seemed to be at the beginning that Prof. Scopes taught
and that evolution teaches that man descended from a monkey. If Prof. Scopes
taught that, he would not be violating this law.... To prove that man was
descended from a monkey would not prove that man was descended from a lower
order of animals, because they are all in the same order of animals-the
first order-and that is the use of the term "order of animals" by zoologists
and I suppose we have got to interpret this term according to its usual
use and so even if Prof. Scopes taught what the prosecution thinks, even
then according to our theory, they would not prove that Scopes taught that
man descended from a lower order of animals. They might say that man came
from a different genus but not a lower order of animals. Perhaps that is
new to you, gentlemen, and I confess it was new to me and yet these men
had the audacity to come into court and ask the court to pass upon these
questions without offering any evidence...
When these gentlemen tell your honor what their theory of the case
is, and then say, "the defense should put in no evidence because this is
our theory" they immediately suggest to your honor that you should hear
one side of the case only. Your honor may know of the occasion some time
ago when a man argued a question for the plaintiff before a judge who had
a very Irish wit and after he had finished the judge turned to the defendant
and said, "I don't care to hear anything from the defendant, to hear both
sides has a tendency to confuse the court" (Laughter in the courtroom)....
What are the questions of fact? A man is guilty of a violation of the
law if he teaches any theory different from the theory taught in the Bible.
Has the judge a right to know what the Bible is? Does that law say that
anything is contrary to the Bible that does not interpret the Bible Literally--every
word interpreted literally? Oh, no, the law says that he must teach a theory
that denies the story as stated in the Bible. Are we able to say what is
stated in the Bible? Or is it a matter of words interpreted literally?
Is your honor going to put into that statute any theory contrary to creation
as stated in the Bible with the words "literally interpreted word by word"
because if you are, the statute doesn't say so. Are we entitled to show
what the Bible is? Are we entitled to show its meaning? Are we entitled
to show what evolution is?....
Does that statement, as the boy stated on the stand, that he was taught
that man comes from a cell--is that a theory that man descended from a
lower order of animals? I don't know and I dare say your honor has some
doubt about it. Are we entitled to find out whether it is or not in presenting
this case to the jury?....
Now, I claim, and it is the contention of the defense these things
we are showing are just as legitimate facts, just as well substantiated
as the Copernican theory and if that is so, your honor, then we say at
the very beginning that this law is an unreasonable restraint on the liberty
of the citizens and is not within the police power of the state. Apparently,
my opponents have the idea that just as long as the question is one of
law for the court, then no evidence is required. There was never anything
further from the truth. They had apparently the idea that the court takes
judicial knowledge of a subject, such as matters of science, and that then
no evidence need be introduced....
Prosecution argues for exclusion of expert testimony (5th day)
Hicks--Now, if your honor please, I insist this, when the experts
come in they have to qualify upon two subjects, as expert upon the Bible
and experts upon a particular branch of science, which they are supposed
to know about. Now, why should these experts know anything more about the
Bible than some of the jurors? There is one on there I will match against
any of the theologians they will bring down, on the jury; he knows more
of the Bible than all of them do.
Malone--How do you know?
Hicks--What is the interpretation of the Bible? Some of the
experts whom they have brought here do not believe in God; the great majority,
the leading ones, do not believe in God; they have different ideas--
Malone--If your honor please, how does he know until he gets
them on the stand, what they believe? We object.
The Court--Sustain the objection; you cannot assume what they
Hicks-- Mr. Darrow said in his speech not long ago, that evolution
is a mystery. Therefore, if expert testimony is full of pitfalls or dangers,
or uncertainties in any issue, how much more so must it be in this issue;
how much more so must it be in this issue in regard to evolution when Mr.
Darrow himself says that evolution is a mystery. So, why admit these experts?
Why admit them? It is not necessary. Why admit them? They invade the province
of the jury....
If they want to make a school down here in Tennessee to educate our
poor ignorant people, let them establish a school out here; let them bring
down their experts. The people of Tennesee do not object to that, but we
do object to them making a school house or a teachers' institute out of
this court. Such procedure in Tennessee is unknown.
Malone argues for admission of expert testimony (5th day)
There is never a duel with the truth. The truth always wins and we are
not afraid of it. The truth is no coward. The truth does not need the law.
The truth does not need the force of government. The truth does not need
Mr. Bryan. The truth is imperishable, eternal and immortal and needs no
human agency to support it. We are ready to tell the truth as we understand
it and we do not fear all the truth that they can present as facts. We
are ready. We are ready. We feel we stand with progress. We feel we stand
with science. We feel we stand with intelligence. We feel we stand with
fundamental freedom in America. We are not afraid. Where is the fear? We
meet it, where is the fear? We defy it, we ask your honor to admit the
evidence as a matter of correct law, as a matter of sound procedure and
as a matter of justice to the defense in this case. (Profound and continued
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