Hays argues that expert testimony should be admitted (5th day)
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....
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 believe....
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 applause).