When law enforcement kills a member of our community, long before you learn the officer's name, you often learn that the victim was "no angel." Whether it's Ahmaud Arbery or George Floyd or Eric Garner, always, no angel. And even when somebody is pretty angelic, like Philando Castile or Botham Jean, there's a rush to blame them for smoking marijuana or watching movies in the dark. And that attitude is reflected in the way our criminal justice system would treat these who survive violent confrontations from police. Following that survival, there is prosecution. And as part of its case, the state is going to use rule 404(b) to tell the jury every nefarious thing the defendant has ever done. In theory, such evidence is not readily admissible, because it effectively destroys the presumption of innocence, assuring jurors that, even if the defendant didn't commit this crime, a conviction works no great injustice because he is no angel. But in reality, admission is close to automatic in most courts.

By contrast, so-called reverse 404(b) evidence is some of the most difficult, almost impossible, evidence to admit in our legal system. Let's say I represent another victim of the officer facing murder charges for the death of George Floyd, and my client is charged with felony obstruction. If our defense is that my client was not "offering violence" to the officer but instead defending himself against the officer's excessive use of force, I might want to show the video of the officer with his knee on Mr. Floyd's neck or give the jury a look through what is reported to be a very lengthy personnel file. But, if I try to introduce this evidence at trial, the prosecutor will object, the judge will sustain the objection, the jury will never hear the evidence, and, if my client is convicted, the appellate courts will affirm the trial court's ruling.

I don't think this is an isolated problem. For every death of a Mr. Floyd, there are hundreds of thousands of arrests and prosecutions for trumped-up charges against innocent people, and 404(b) evidence helps send those people to prison.

Almost every state, including Georgia, has some version of the federal 404(b) rule. And if we take a minute to read that rule, there is no reason why "reverse" 404(b) evidence couldn't be used as a powerful tool against the government at trial.

You want to stop injustice? Get rid of 404(b) and let every defendant be judged on the evidence of crime the state has charged and not on past mistakes. Better yet, keep 404(b) and start applying the rules evenly, so that juries can learn the whole story.  Criminal defendants aren't perfect people, but neither are the agents of the state.

Noah H. Pines, a partner at Atlanta's Ross & Pines, heads the firm's criminal defense and appellate practice.