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Volume 64
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.

The Status of Nonstatus

By Geoffrey Heeren | 64 Am. U. L. Rev. 1115


Millions of unauthorized immigrants in the United States have no legal immigration status and live in constant fear of deportation.  There are millions more who do have some sort of status, like lawful permanent residency, asylum, or a nonimmigrant visa.  In between is the netherworld of nonstatus.  Here live noncitizens who possess government documentation but few rights.  They have no pathway to lawful permanent residence or citizenship and cannot receive most public benefits.  If nonstatus is denied or revoked by a prosecutor or bureaucrat, there is no right to a hearing or an appeal.  If the Executive Branch discriminates in how it allocates nonstatus, there may not be a legal right to challenge it.


By The Honorable Jane A. Restani | 64 Am. U. L. Rev. 729

As the baby boom generation is replaced by the millennials as the largest age group in the United States, the federal court community is noticing the change in the composition of the federal judiciary.  Like my own court, where four of nine active judges have moved to senior status in the past few months and we have two recently appointed colleagues, the U.S. Court of Appeals for the Federal Circuit has welcomed three new jurists:  Judges Richard G. Taranto, Raymond T. Chen, and Todd M. Hughes.  Further, Judges Kathleen M. O’Malley, Jimmie V. Reyna, and Evan J. Wallach joined the Circuit in the recent past.

Processing Disability

By Jasmine E. Harris | 64 Am. U. L. Rev. 457 (2015)

This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws.  Descriptively, the law has a complicated history with disability—initially rendering disability invisible; later, underwriting particular narratives of disability synonymous with incapacity; and, in recent history, promoting the full socio-economic visibility of people with disabilities.  The Americans with Disabilities Act (ADA), the marquee civil rights legislation for people with disabilities (about to enter its twenty-fifth year), expresses a national approach to disability that recognizes the role of society in its construction, maintenance, and potential remedy.  However, the ADA’s mission is incomplete.  It has not generated the types of interactions between people with disabilities and nondisabled people empirically shown to deconstruct deeply entrenched social stigma.  Prescriptively, procedural design can act as an “antistigma agent” to resist and mitigate disability stigma.  This Article focuses on one element of institutional design—public access to adjudication—as a potential tool to construct and disseminate counter-narratives of disability.  The unique substantive focus in disability adjudication on questions of agency provides a potential public space for the negotiation of nuanced definitions of disability and capacity more reflective of the human condition.

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The editors of the American University Law Review respectfully dedicate this issue to Professor Andrew Taslitz.


In Memoriam

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