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The Champion

November 2017 , Page 40 

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A Better and More Useful Jury Instruction on Witness Memory and Demeanor Reflecting the Teachings of Cognitive Psychology

By Judge Mark W. Bennett

Editors Note: This article is a summary of a much longer, more detailed and heavily footnoted law review article Judge Mark Bennett wrote in 2015. See Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility, 64 Am. U.L. Rev. 1331 (2015). For ease of reading, no endnotes are included here; they may easily be found in the law review article. The law review article cites dozens of articles on the subject, including the leading cognitive psychological studies from social science journals. It may be found at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2581650.

Unless my experience of trying several hundred federal criminal cases in three federal districts is idiosyncratic, in the clear majority of cases the defense has no witnesses, other than the occasional defendant. Thus, the credibility of the witnesses called by the prosecution is front and center in every criminal c

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