- 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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