One of the foundational myths of our nation is that criminal defendants enjoy something called the “presumption of innocence” and that for the government to convict someone of a crime, they must prove guilt “beyond a reasonable doubt”.

Are either of these propositions, however, actually true? As the Jodi Arias trial convincingly demonstrates, no they are not.

For example, I have heard quite a few commentators make the point that Jodi Arias’ testimony regarding Travis Alexander’s behavior is uncorroborated. In other words, we do not have any proof of what Ms. Arias is claiming to be true other than her testimony. Why doesn’t she have any proof? The simple answer is that it is next to impossible, maybe even impossible, for Ms. Arias, or any defendant for that matter, to prove what she is claiming. It is not impossible for her to prove it because it isn’t in fact the case but because of the nature of presenting evidence makes it so.

Quite a few commentators have made the point that Mr. Alexander’s ex-girlfriend, Lisa Andrews Diadoni, didn’t corroborate Ms. Arias’ claims about Mr. Alexander. Assume for the moment that everything that Ms. Arias said about Mr. Alexander is true, and that Ms. Diadoni knows it is true. Would she still admit it to the world? That is, would any women in her right mind admit to the world that the man she dated and wanted to marry was a weirdo, possibly a pedophile?

Of course not, which leads to the ultimate point: while the defense technically has the power to force witnesses to testify by way of the subpoena power, that is nothing compared to the state’s power to assemble witnesses and evidence. The state cannot only force witnesses to testify, it can persuade, some say compel, witnesses to testify in particular manner. They can do this because most state witnesses are government employees and obviously, police officers are likely to testify how the prosecutor wishes. Even civilian witnesses could be persuaded to testify in the prosecution’s favor because those witnesses are “going to bat for the good guys”, getting the benefit of a favorable plea bargain, or avoiding the threat of prosecution altogether. The defense has none of these incentives to encourage favorable witness testimony. If anything, unlike testifying on behalf of the prosecution, testimony for the defense will be seen by the majority of the public as advancing an evil agenda.

And this does not even begin to mention the state’s overwhelming advantage in resources, namely the dozens of police officers, technicians, experts, and investigative reports at hand as soon as a case begins. The prosecution cherry picks the evidence, charges, and when and how a prosecution begins. It then has the overwhelming “moral” power of persuasion. How can any person, innocent or guilty, compete with that?