Jerry and Patricia A. Dixon, et al - Page 125




                                       - 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.                                                           

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