- 204 - The burden of proof consists of two burdens--the burden of production of evidence and the burden of persuasion. See Wigmore, Evidence in Trials at Common Law, secs. 2485 to 2488 (Chadbourn rev. 1981). Assignment of the burden of proof and fixing the standard of proof serve a procedural function by delineating the parties' obligations respecting the presentation of evidence at trial. Although assignment of the burden of proof was not resolved before the evidentiary hearing, the Court is satisfied that the evidentiary hearing has produced a record that contains all relevant facts necessary for the Court to discharge its obligations under the mandate. The parties' versions of the facts as set forth in their respective proposed findings of fact generally are in accord,91 with one immaterial exception discussed infra pp. 209-211. Consequently, from a purely procedural standpoint, assignment of the burden of proof and fixing the standard of proof are not necessary. We likewise are convinced that assignment of the burden of proof is not necessary for the Court to decide whether the Sims- McWade misconduct resulted in a structural defect in the trial of the test cases. The structural defect question raises a legal 91 In those instances where the parties have not agreed with respect to a particular fact, or the record does not clearly reflect the date of a particular event, the Court generally has adopted the finding of fact proposed by the test case and nontest case petitioners.Page: Previous 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 Next
Last modified: May 25, 2011