Cite as: 512 U. S. 267 (1994)
Opinion of the Court
The Supreme Judicial Court of Massachusetts was the leading proponent of the view that burden of proof should be limited to burden of persuasion. In what became an oft-cited case, Chief Justice Lemuel Shaw attempted to distinguish the burden of proof from the burden of producing evidence. Powers v. Russell, 30 Mass. 69 (1833). According to the Massachusetts court, "the party whose case requires the proof of [a] fact, has all along the burden of proof." Id., at 76. Though the burden of proving the fact remains where it started, once the party with this burden establishes a prima facie case, the burden to "produce evidence" shifts. Ibid. The only time the burden of proof—as opposed to the burden to produce evidence—might shift is in the case of affirmative defenses. Id., at 77. In the century after Powers, the Supreme Judicial Court of Massachusetts continued to carefully distinguish between the burden of proof and the burden of production. See, e. g., Smith v. Hill, 232 Mass. 188, 122 N. E. 310 (1919).
Despite the efforts of the Massachusetts court, the dual use of the term continued throughout the late 19th and early 20th centuries. See 4 J. Wigmore, Evidence §§ 2486-2487, pp. 3524-3529 (1905); Thayer, supra, at 355; 1 B. Elliott & W. Elliott, Law of Evidence § 129, pp. 184-185 (1904); 2 C. Chamberlayne, Modern Law of Evidence § 936, pp. 1096- 1098 (1911). The ambiguity confounded the treatise writers, who despaired over the "lamentable ambiguity of phrase and confusion of terminology under which our law has so long suffered." Wigmore, supra, at 3521-3522. The writers praised the "clear-thinking" efforts of courts like the Supreme Judicial Court of Massachusetts, Chamberlayne, supra, at 1097, n. 3, and agreed that the legal profession should endeavor to clarify one of its most basic terms. According to Thayer, supra, at 384-385, "[i]t seems impossible to approve a continuance of the present state of things, under which such different ideas, of great practical importance and of frequent application, are indicated by this single ambigu-
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