Expert Witnesses in Media: The Cross-Examination in A Few Good Men
By Noah Bolmer
The superb A Few Good Men features a pivotal expert witness cross-examination—but unlike another 1992 legal blockbuster, My Cousin Vinny—this expert’s performance spells the beginning of the end for the prosecution. We put the examination of Dr. Stone under the microscope to see what went wrong, and what we can learn from it.
Background
Lieutenant Junior Grade Daniel Kaffee (Tom Cruise), a young, aloof Navy lawyer with experience limited to plea bargains, is assigned to defend two marines; Lance Corporal Dawson, and Private Downey (note that the Marine Corps is part of the Department of the Navy, and this arrangement is not uncommon). They stand accused of murdering a fellow marine, Private Santiago, at the Guantanamo Bay Naval Base. The marines claim they were merely following orders for a code red—an unsanctioned disciplinary hazing—targeting Santiago because he was underperforming and had threatened to expose illegal activity in order to secure a transfer. This code red is depicted onscreen with two marines tying down Santiago and shoving a rag into his mouth. He was still alive when the pair left. Lieutenant Commander JoAnne Galloway (Demi Moore), a more experienced investigator, suspects a cover-up and pushes Kaffee to mount a real defense rather than a plea, believing the code red order came from the formidable base commander, Colonel Nathan Jessup (Jack Nicholson).
A star-studded cast, and Oscar-nominated performances make this film a worthwhile view for experts and legal professionals alike, although recent re-evaluations have pointed to some of its inaccuracies, including the pure fabrication most often pointed out, that attorneys must tiptoe around high-ranking witnesses, lest they suffer legal sanctions.
While most analyses of the movie focus on Kaffee’s cross-examination of Colonel Jessup, and the Nuremberg defense (“just following orders”) aspects of the code red, here, we are limiting the analysis to the less-often looked at cross-examination of the examining doctor and expert witness Commander Stone.
Sidebar: Civilian Court vs. JAG
The Judge Advocate General’s Corps (JAG) is the military justice branch of the armed services. In many ways, it functions similarly to the civilian court system but is often more streamlined. Judges are service members, as are the jurors in jury trials as depicted in the film.
The Military Rules of Evidence (MRE) is the military equivalent of the Federal Rules of Evidence. Just as FRE 702 governs expert witnesses, Mil. R. Evid. 702 does the same in military courts. The text of the rules is identical, so expert witnesses in JAG matters should have no problems from a procedural perspective. Note that while the rules currently mirror each other, this is not automatic; there is a lag time between military adoption of any Federal rules, so check with your attorney for any procedural questions for JAG engagements.
A defendant in a military court may even secure investigative assistance from an expert at the government’s expense if they can demonstrate necessity, per United States v. Garries. This affords military defendants an advantage that civilians may not have.
Direct Examination of Dr. Stone
In the film, Dr. Stone (portrayed by Christopher Guest in a rare dramatic role) is the medical officer who examined Private Santiago after his death. Counsel for prosecution Captain Ross questions Dr. Stone on direct examination, under a theory that the rag used during the code red was poisoned, resulting in a potentially deadly condition called lactic acidosis.
Although not brought up during the film, there are advantages and disadvantages to using an expert witness who is a party to the case. On one hand, Dr. Stone is already aware of the facts, conducted the examination himself, and therefore is a necessary fact-witness. Any expert witness brought in would necessarily have to spend time becoming familiar with Dr. Stone’s reports, so it would seem efficient to go right to the source. On the other hand, there is an implicit bias: Dr. Stone the expert has a vested interest in not undermining Dr. Stone the fact-witness. In a real case, the defense might have objected, deposed Dr. Stone, and likely brought in their own medical expert witness. Nevertheless, it is not uncommon for medical professionals to act as both when deemed appropriate, sometimes even when not designated as an expert witness prior to the case.
Direct examination proceeds:
Ross: Dr. Stone, what’s lactic acidosis?
Stone: If the muscles and other cells of the body burn sugar instead of oxygen, lactic acid is produced. That lactic acid is what caused Santiago’s lungs to bleed.
Ross: How long does it take for the muscles and other cells to begin burning oxygen instead of sugar?
Stone: Twenty to thirty minutes.
Ross: And what caused Santiago’s muscles and other cells to start burning sugar?
Stone: An ingested poison of some kind.
Kaffee: Your Honor, we object at this point. The witness is speculating.
Ross: Commander Stone is an expert medical witness, in this courtroom his opinion isn’t considered speculation.
Here, the prosecution states that Dr. Stone is in fact acting as an expert witness. They continue:
Kaffee: Commander Stone is an internist, not a criminologist, and the medical facts here are ultimately inconclusive.
Judge Randolph: A point which I’m confident you’ll illustrate to the jury under cross-examination, so I’m sure you won’t mind if his opinion is admitted now.
Kaffee: Not at all, sir. Objection withdrawn.
It is important that expert witnesses stay within their wheelhouse, and Kaffee’s line of attack was wholly appropriate. While acidosis is the proximate cause of death, Dr. Stone is reaching beyond his profession in stating definitively that a crime was committed. The judge is unimpressed, however, and were it not for the film’s dramatic denouement, this overruled objection might have been grounds for an appeal. Kaffee avoids further confrontation, knowing he has made his record. Direct continues:
Ross: Doctor Stone, did Willy Santiago die of poisoning?
Stone: Absolutely.
Ross: Are you aware that the lab report and the coroner’s report showed no traces of poison?
Stone: Yes I am.
Ross: Then how do you justify—
Stone: There are literally dozens of toxins which are virtually undetectable, both in the human body and on a fabric. The nature of the acidosis is the compelling factor in this issue.
Here, Dr. Stone is admitting that his evidence is entirely circumstantial. An expert witness has a duty to the neutral, unembellished truth. Dr. Stone is drawing a conclusion that benefits the prosecution (and his reputation) rather than acting without bias. If poison was empirically causative of acidosis, that would be one thing, but it isn’t, and Kaffee knows it. As an expert witness, he should have used phrasing like “may indicate a toxin”, or “is consistent with poison as one possibility” so as not to draw conclusions beyond the scope of his expertise.
Cross-Examination of Dr. Stone
Although the judge suggested (while overruling Kaffee’s objection in cross) that defense address Dr. Stone’s profession as an internist during cross, Kaffee takes a different tack:
Kaffee: Commander, you testified that it takes lactic acidosis 20 to 30 minutes before it becomes lethal.
Stone: Yes.
Kaffee: Let me ask you, is it possible for a person to have an affliction—some sort of condition, which might, in the case of this person, actually speed up the process of acidosis dramatically?
Kaffee: (continuing) Commander, is it possible?
Stone: Certainly.
Here, Stone takes a long pause without answering, which prompts Kaffee to repeat the question. While many experts have recommended slowing things down and taking a moment to answer a difficult question, there is no avoiding the truth. If you know the answer, delaying the inevitable helps neither your side, nor your credibility. Kaffee continues:
Kaffee: What might some of those conditions be?
Stone: (beat) If a person had a coronary disorder… or a cerebral disorder, the process would be more rapid.
Kaffee: Commander, if I had a coronary condition, and a perfectly clean rag placed in my mouth, and the rag was accidentally pushed too far down, is it possible that my cells would continue burning sugar after the rag was taken out?
Stone: It would have to be a very serious condition.
While relying on the prosecution’s own witness to undermine their strategy is a powerful tactic, Kaffee’s line of questioning might have been bolstered by obtaining an expert witness for the defense. Similarly, he might have been even better prepared to spar with a medical professional if he had consulted with one. He continues:
Kaffee: Is it possible to have a serious coronary condition, where the initial warning signals were so mild as to escape a physician during a routine medical exam?
Stone: Possibly. There would still be symptoms though.
Kaffee: What kind of symptoms?
Stone: There are hundreds of symptoms of a—
Kaffee: Chest pains?
Stone: (beat) Yes.
Kaffee: Shortness of breath?
Stone: Yes.
Kaffee: Fatigue?
Stone: Of course.
Kaffee: Doctor, is this your signature?
Stone: Yes it is.
Dr. Stone has walked right into Kaffee’s trap. Earlier, the doctor had stated in no uncertain terms that the death was definitively caused by poisoning the rag. Here, he has already contradicted himself in admitting that there are other possibilities (a preexisting coronary condition). Expert witnesses need to be extremely careful when using unequivocal language, and attorneys should coach them on this. Now, with blood in the water, Kaffee presses:
Kaffee: This is an order for Private Santiago to be put on restricted duty. Would you read your hand-written remarks at the bottom of the page, please, sir.
Stone: (reading) “Initial testing negative. Patient complains of chest pains, shortness of breath, and fatigue. Restricted from running distances over five miles for one week.”
Kaffee: Commander, isn’t it possible that Santiago had a serious coronary condition, and it was that condition, not some mysterious poison, that caused the accelerated chemical reaction?
Stone: No. I personally give the men a physical examination every three months. And every three months Private Santiago got a clean bill of health.
Kaffee: And that’s why it had to be poison, right, Commander? ‘Cause Lord knows, if you put a man with a serious coronary condition back on duty with a clean bill of health, and that man died from a heart related incident, you’d have a lot to answer for, wouldn’t you, doctor?
The implication here is that Stone has a strong motive to jump to “poison” as being the only possible cause of death. Even though the Judge sustains an objection to strike the comment from the record (though the objection is stated without grounds), the jury has heard the accusation.
Ultimately, Dr. Stone gave a poor performance. He was clearly advocating rather than remaining neutral, he had an implicit bias, and he spoke in unequivocal terms which he was forced to contradict.
Aftermath
In the film’s dramatic climax, Kaffee goads Colonel Jessup into admitting that the code red was a direct order in the famous “you can’t handle the truth!” exchange. While the examination of Dr. Stone wasn’t the final blow, in another universe, it could have been enough to foment reasonable doubt among the jury. Ultimately, the murder charge is dropped, but Dawson and Downey are dishonorably discharged for following an illegal order.
Whether for a military or civilian matter, expert witnesses must carefully consider whether or not they are conflicted before accepting an engagement. Once on the stand, experts must remain unbiased and answer all questions truthfully. Be wary of unequivocal language and be honest if you contradict yourself; trust in your attorney to unwind difficult cross-examinations on re-direct.
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