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.
Courts and scholars frame the jury's role along a continuum between fact and law. (1) At one end, the jury engages in "fact-finding," ascertaining historical fact pertinent to guilt. (2) At the other, the jury is said to be "law-finding": assessing whether the defendant's conduct, if legally prohibited, merits criminal sanction in the circumstances at hand. (3) And along the continuum, juries apply facts to law--determining whether the laws as set forth by the court apply to the defendant's conduct. (4) This framework is a mainstay of much of the jury literature, and a guiding principle of evidentiary doctrine. Yet it misses a central function of today's criminal jury: evaluating law enforcement.
Sometimes jury evaluation of law enforcement requires finding facts directly pertinent to guilt, as when, for instance, an eyewitness's recollection or identification, or a defendant's confession, may have been tainted by police interference. But sometimes the link between guilt and law enforcement conduct is more tenuous. An eyewitness identifies a photograph of a defendant as the perpetrator--why did the police initially select the defendant's photograph to show the witness? Officers lawfully stop the defendant on the street, frisk him, and recover a gun--what caused them to stop the defendant in the first place? An accomplice testifies for the prosecution--to which crimes does the prosecutor require the accomplice to plead guilty, and which has she permitted to be overlooked?
These are the sorts of inquiries that pervade criminal trials. When permitted, they are framed as part of the jury's fact-finding role, needed to establish the "background" of the investigation, "complete the story" of the crimes on trial, or test law enforcement witnesses' credibility. (5) When precluded, they are cast as entreaties to "nullification"--impermissible attempts at a verdict contrary to law. (6) Scholars, too, frame jury evaluations of law enforcement in this way, distinguishing the fact-based from the nullificatory. (7)
Yet jury evaluations of law enforcement do not always fall squarely in either category. Evaluating law enforcement goes beyond traditional factfinding, both because it entails a normative judgment (did the police do or not do X and should they have done or not done x?) and because the facts to be found may not pertain exclusively to the question of guilt. (8) At the same time, such evaluations do not always implicate "law"--at least, not in the traditional sense of constitutional, statutory, or common law. Those sources set floors for police and prosecutorial conduct, not standards by which juries evaluate it. (9) Nor does an acquittal based in part on law enforcement malfeasance necessarily constitute "nullification," because in practice, it is often impossible to separate the strength of the evidence from the perceived competence and legitimacy of those who gather and present it. (10) Evaluations of law enforcement, in short, are neither entirely fact-finding, nor law-finding, nor even a combination of the two. They are what we might call enforcement-finding.
Enforcement-finding occurs when juries assess evidence of guilt together with the actions of those who gathered it; (11) when they ascertain not only what police and prosecutors have done, but whether those actions--legal or not (12)--are appropriate and desirable. Enforcement-finding can transform a jury's focus from the alleged acts of the accused to those of the accusers. It is a phenomenon that permeates criminal adjudication--affecting not just trials, but plea bargaining, discoveiy, and even charging decisions. And yet, it remains under-examined. (13) We lack theory to conceptualize this jury role, doctrine to set its parameters, and institutional mechanisms to accommodate it.
This Article aims to fill those gaps, systematically re-conceptualizing the criminal jury's role and the criminal justice system's response to it. First, the Article explores enforcement-finding's processes and effects, and demonstrates the inadequacy of the law/fact framework to set enforcement-finding's proper scope. Second, it situates enforcement-finding in historical context, examining how it developed and why it persists. Finally, and from these accounts, the Article stakes its normative claim: enforcement-finding is a peivasive, inevitable, and needed feature of contemporary American criminal justice. Rather than camouflaging it as "fact-finding," or resisting it as "law-finding," we should engage and confront enforcement-finding in all its messy complexity. Enforcement-finding poses difficult judicial choices. It may require some institutional accommodations. But it also offers opportunities to enhance law enforcement accountability and adjudicative legitimacy.
Some clarifications are in order. My account does not encompass prosecutions of police, a small and atypical class of cases raising unique jury/law enforcement dynamics. Nor am I focused on jury judgments of Fourth Amendment reasonableness, a subject others have addressed. (14) My target is the bread-and-butter criminal trial--the robberies, thefts, drug deals, frauds, and other cases that make up the bulk of state and federal felony dockets--and the actions, constitutional or not, of police, agents, and prosecutors who investigate and charge them. It is also important to stress that my claim is party-neutral. Embracing jury evaluation of law enforcement does not, as a general matter, favor the defense or the prosecution; its effect in a given case depends on the jury's perception of law enforcement's actions in the case at hand and, potentially, more broadly. (15) Finally, I do not seek to supplant existing theories of jury decisionmaking, or to discount the influence of other prevalent trial dynamics. Enforcement-finding is not the only, and not always the primary, focus of the criminal jury (though it can be in certain cases or categories of cases). But it is an important focus, and one that has received too little scholarly attention.
The Article proceeds as follows. Section LA explores the extent, scope, and influence of enforcement-finding, drawing on trials and court rulings, observational studies, and empirical research. Section I.B exposes the poverty of the fact/law framework to set enforcement-finding's boundaries.
Part II places enforcement-finding in historical context. It situates the jury's role, and enforcement-finding's rise, within historic transformations in criminal law and enforcement. In so doing, it reveals enforcement-finding as a natural and necessary adaptation to these changes. Enforcement-finding arose, and persists, for good reason.
These insights should guide our approach. Rather than disguise or resist this phenomenon, we should acknowledge, accept, and accommodate it. Part III describes how. Institutional design should aim to minimize enforcement-finding's risks while leveraging its regulatory potential. And doctrine should enable transparency and balance--litigants and courts should openly concede enforcement-finding's probative value, balancing it against potentially competing concerns around fairness, accuracy, and efficiency.
What Is Enforcement-Finding?
Enforcement-finding has become so ingrained in criminal adjudication we rarely pause to consider its processes or effects. As a result, we have not given due thought to what, exactly, it is, and how we ought to approach it. Courts and scholars too often mistake enforcement-finding for something else, or, recognizing it, apply a framework that doesn't quite fit.
This Part unravels enforcement-finding's processes, explores the depth of its influence, and exposes its insusceptibility to the fact/law framework. Subsection A.l explores how tightly the phenomenon is woven into the fabric of criminal adjudication--from evidentiary doctrine to jury instructions to discovery to plea bargaining to charging decisions. Subsection A.2 mines the empirical data on jury evaluation of law enforcement, confirming the phenomenon is real, influential, and complex. Section B reveals the poverty of the fact/law framework to set enforcement-finding's proper boundaries.
Enforcement-Finding in Practice
Evidentiary Doctrine and the Courtroom Dynamic
How criminal cases are tried and bargained is, in large part, a reflection of litigants' and courts' beliefs about jury decisionmaking. Both evidentiary doctrine and adjudicative practice reflect an abiding and pervasive belief that jurors implicitly evaluate law enforcement--and consternation about how...