As police officers continue to shoot and kill unarmed civilians, we must examine the disparity between police brutality and police accountability. Too many officers kill unarmed Black people with little to no consequences. One barrier to accountability is gathering witnesses, as witnesses are required to present themselves for trial to testify against accused officers.

The Confrontation Clause protects an accused’s right to confront and cross-examine witnesses against them in criminal prosecutions. While the Confrontation Clause generally serves the admirable goal of protecting defendants against certain unfair out-of-court statements, its use in police brutality cases deviates from its constitutional purpose and spirit. The Confrontation Clause’s broad application facilitates a lack of oversight on police power, and should be reconsidered. Too often, instances of police brutality result in the victim’s death – eliminating direct evidence of both the brutality and the conduct that led to this death. Eyewitness testimony often becomes integral in showing officer wrong-doing. The Confrontation Clause places certain demands on eyewitness testimony, most notably a general requirement of availability; this means that witnesses called against a defendant must be able to testify in court and is subjected to cross-examination by the defendant. The Clause effectively acts to bar, both directly and indirectly, certain eyewitness testimony pertaining to police brutality and should be re-interpreted to avoid such misuse.

The success of police brutality cases often depends on eyewitness testimony, which presents additional hurdles. First, it is unlikely an officer who witnessed the incident would testify against a fellow “brother.” Similarly, other witnesses, if they exist, may also be hesitant to testify. The Clause’s requirement of availability forces witnesses to identify themselves as testifying against officers who likely serve(d) within the witness’s community – where the witness will remain subject to local police protection, which could result in harassment and intimidation. These witnesses tend to be more vulnerable members of society – many are disabled, low-income, and/or persons of color. Whether explicitly or implicitly, sweeping use of the Clause creates clear hurdles to eyewitness testimony in police brutality cases.

The Clause significantly weakens prosecution efforts to prove brutality beyond a reasonable doubt by unjustly precluding direct evidence, making the prosecution’s task near impossible. Without eyewitness testimony, the prosecution is usually left to prove their case through entirely circumstantial evidence, which is weaker and less convincing than direct evidence. This can be the difference between an evidentiary offering of: “a victim was hurt after an illegal chokehold, so police brutality occurred” and eyewitness testimony detailing: “I watched police put the compliant victim in a chokehold while he cried ‘I can’t breathe!’ and after he lost consciousness, they handcuffed him without offering treatment.” The latter clearly contains more powerful evidence. yet it is less likely to be admissible in light of the current application of the Clause if the witness is unavailable.

To achieve justice through truly fair trials, trial courts should limit the right to cross-examine in cases involving police brutality by allowing anonymized testimony. Anonymous testimony would serve as a control, not a complete bar, to cross-examination and thus operate consistently with the Confrontation Clause. The advancement of technology has opened the possibility of anonymized testimony via video conferencing. This would entail broadcasting witnesses in the court room for the entirety of their testimony, including cross-examination, using software to distort the witnesses’ identity.

Why should we grant anonymized testimony in police brutality trials when it is not permitted elsewhere? Public interest demands we prioritize the wellbeing of citizens over offering defendants unlimited rights. The cop-defendant still retains the right to confront most witnesses; this proposal simply adds one limitation in this very specific context.

In the interest of justice, we must re-evaluate the right to confront in police brutality cases. This requires an acknowledgement that the Confrontation Clause and its progeny were motivated by the need to protect defendants. Within this lies a duty to evaluate why protection was so necessary – because most defendants were historically disadvantaged and burdened individuals. Although that is still the case in an overwhelming number of contexts within the criminal justice system, it generally does not ring true in police brutality cases. As such, in police brutality cases, such protections are not necessary.

The underlying interests and spirit behind the Clause’s protection has fallen out of touch with the reality of police brutality cases. Today, people in positions of power have increasingly become defendants, finally being brought to answer the injustices they have (allegedly) inflicted upon largely marginalized people. As such, we must re-examine doctrines that were ingrained in our judicial system at a time when defendants were differently situated. We should consider modifying these doctrines to balance new interests. Police officers as defendants upend the traditional power dynamics at play in a criminal trial. In police brutality cases, the victims and witnesses are the people more likely to be disadvantaged and burdened. Meanwhile, defendants were (and sometimes still are) seated in positions of extreme power, experience less disadvantages than comparable defendants within the criminal justice system, and face juries that tend to be composed in their favor –ones actually comprised of their peers. Thus, the defendant’s protections should yield to accommodate citizens’ interests. In police brutality cases, courts should have discretion to allow anonymous testimony where there is reason to fear retaliation should the witness testify against the officer-defendant.