Column: Voir Dire

At least half of what I learned in medical school was wrong. That was not because my teachers were ill-informed or intent upon misleading me. It was an inevitable consequence of learning from mistakes. The field of medicine has historically been slow to embrace new ideas and practices, but the results of experiments and experience inevitably overwhelm prejudices and misconceptions.

An Austro-Hungarian physician named Semmelweis dared to suggest that doctors were spreading a fatal disease to women who had recently delivered babies because those doctors did not wash their hands after participating in autopsies. We now know that the doctors were carrying lethal germs from the bodies of the dead to the bodies of the living. Semmelweis recommended that doctors wash their hands with what proved to be a simple antiseptic. He was reviled by his colleagues and ultimately had to flee his native country. 

To suggest that doctors did things that killed patients was a career ender. Of course, Louis Pasteur and numerous other scientists found the bacteria that were killing these woman, and medicine took a tiny step forward in the area of women’s health. The need to abandon beliefs and practices in medicine that have proved inadequate, insufficient or simply wrong is obvious. We do not ignore or bury facts simply because they make us look ignorant or feel uncomfortable. We remember and learn from our mistakes. And that brings me to voir dire.

In the 1950s, I routinely watched the television series called Perry Mason. This was a show about a lawyer who defended accused murderers. During the time allotted for this drama, Perry Mason would establish that the prosecuting district attorney was an idiot and that his client was innocent. Before the closing credits, the least likely suspect would stand up and confess to the murder. This program taught me about the law, court proceedings, and the disadvantages of confession. Never once did I hear mention of “voir dire” until I took the stand as an expert testifying in a malpractice lawsuit.

I agreed to testify on behalf of the injured patient.The plaintiff’s [the patient’s] lawyer asked me about my training, licensing, and practice, and she sat down. The judge turned to the defense lawyer and asked, “Do you want to voir dire the witness?” This was unnerving, since I had never heard that phrase before. The defense attorney stood, asked me a few innocuous questions, and sat down. Voir dire was apparently an opportunity for the other side to dig a little deeper into my background, to learn more about me and my career. It was painless but presumably helpful to the attorney who now sought to discredit everything I might say.

Although several sources disagreed on what this term meant and where it came from, the consensus was that it was an antique Anglo-Norman phrase that literally meant “to tell the truth.” Apparently, the English courts held on to a variety of antique phrases, just as American courts still use terms like “subpoena duces tecum” and “res ipso loquitur” to add a little color to very dry discourse.

What is odd in the current discussion in America regarding race relations is the violent opposition to voir dire, to tell the truth.  Many pundits and politicians insist that discussing mistakes made with regard to race policies in America would be demoralizing, divisive, or dangerous. As an American familiar with unspeakable events, laws and practices, past and present, I do not see a disadvantage in reviewing and learning from them. If the discussion makes some people feel guilty or vilified, that discomfort should prompt changes in laws and practices. In fact, learning about race relations in America over the centuries should prompt informed choices and minimize future conflicts. Even the most abused groups in America clamor for justice, rather than revenge.

California had financial problems when it sought statehood in 1849. Its efforts to eradicate the Native Americans had been more successful than anticipated. The legislature had authorized cash bounties for the heads of indigenous men, women and children killed by white settlers. So many heads were taken and submitted for cash payments that the California legislature petitioned the U.S. federal government to assume the debt incurred by this genocide, and the U.S. Congress agreed to pay.

Such horrors litter American history. Talking about the illegality of Andrew Jackson’s forcible expulsion of the Cherokee nation from its homes and lands in direct defiance of a Supreme Court order reminds us that we need better systems for enforcing laws intended to avoid or correct injustices. Considering the 1942 imprisonment of American citizens with Japanese ancestry by the Roosevelt administration and discussing the federal system of redlining that was designed to deny financing for homes on streets where African Americans lived should lead us to ensure that those injustices cannot occur again.

Federal, state, city, and town laws that allow the oppression and victimization of specific racial, ethnic, or religious groups need to be identified, repealed, and barred from resurrection. The Fourteenth and Fifteenth Amendments to the U.S. Constitution made such discriminatory laws and practices illegal, but state and federal agencies turned blind eyes and allowed these Amendments to be ignored. Those Amendments were in place before the Jim Crow laws gained traction in previously slave-holding states, and yet laws disenfranchising African Americans were vigorously enforced in southern states.

Looking back, we wonder how such perversions of justice could have occurred in a nation allegedly committed to “liberty and justice for all.” These unjust laws and practices emerged because they were largely ignored by states that were not directly affected and were supported by individuals who personally profited.

The first step in eliminating injustice is identifying it. Vermin scatter and hide when you turn on the lights.  Injustices, like the Jim Crow laws and the Chinese Exclusion Act of 1882 and de facto segregation, can easily re-emerge if legislators are unrestrained and voters are misinformed. Stakeholders in the current power structure have immersed our country in misinformation. Claims made by those who are promoting voter suppression and silence on racial inequities do not stand up to voir dire. We need to recognize where we have gone wrong in the past and what we are doing wrong in the present if we are to avoid those mistakes in the future.

Dr. Lechtenberg is an Easton resident who graduated from Tufts University and Tufts Medical School in Massachusetts and subsequently trained at The Mount Sinai Hospital and Columbia-Presbyterian Medical Center in Manhattan.  He worked as a neurologist at several New York Hospitals, including Kings County and The Long Island College Hospital, while maintaining a private practice, teaching at SUNY Downstate Medical School, and publishing 15 books on a variety of medical topics. He worked in drug development in the USA, as well as in England, Germany, and France.

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