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Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility

By Mark W. BennettAm. U. L. Rev. 1331 (2015)

The soul of America’s civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses’ memories and the effect of the witnesses’ demeanor on their credibility.

Almost all jurisdictions’ pattern jury instructions about witness credibility explain nothing about how a witness’s memories for events and conversations work—and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness’s “memory” with no additional guidance. Similarly, the same pattern jury instructions on demeanor seldom do more than ask jurors to speculate about a witness’s demeanor by instructing them to merely observe “the manner of the witness” while testifying. Yet, thousands of cognitive psychological studies have provided major insights into witness memory and demeanor. The resulting cognitive psychological principles that are now widely accepted as the gold standard about witness memory and demeanor are often contrary to what jurors intuitively, but wrongly, believe.

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