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Abstract

Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. Over time, the criminal jury’s role has evolved within the surrounding criminal enforcement environment. Jury evaluation of law enforcement is an adaptation in that process; it arose, and persists, because the system needs it. This insight should inform our approach. Rather than resisting enforcement-finding, or mistaking it for something else, we should instead accept, accommodate, and even leverage it. Institutional design should balance potential hazards against systemic benefits. And doctrine should enable courts to openly and transparently balance the need for jury evaluation of law enforcement against potentially competing adjudicative values.

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