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Opinion of the Court
ous expression." See also Chamberlayne, supra, at 1098. To remedy this problem, writers suggested that the term "burden of proof" be limited to the concept of burden of persuasion, while some other term—such as "burden of proceeding" or "burden of evidence"—be used to refer to the concept of burden of production. Chamberlayne, supra, § 936; Elliott & Elliott, supra, at 185, n. 3. Despite the efforts at clarification, however, a dwindling number of courts continued to obscure the distinction. See Annot., 2 A. L. R. 1672 (1919) (noting that some courts still fail to properly distinguish "between the burden of proof and the duty of going forward with the evidence").
This Court tried to eliminate the ambiguity in the term "burden of proof" when it adopted the Massachusetts approach. Hill v. Smith, 260 U. S. 592 (1923). Justice Holmes wrote for a unanimous Court that "it will not be necessary to repeat the distinction, familiar in Massachusetts since the time of Chief Justice Shaw, [Powers, supra], and elaborated in the opinion below, between the burden of proof and the necessity of producing evidence to meet that already produced. The distinction is now very generally accepted, although often blurred by careless speech." Id., at 594.
In the two decades after Hill, our opinions consistently distinguished between burden of proof, which we defined as burden of persuasion, and an alternative concept, which we increasingly referred to as the burden of production or the burden of going forward with the evidence. See, e. g., Brosnan v. Brosnan, 263 U. S. 345, 349 (1923) (imposition of burden of proof imposes the burden of persuasion, not simply the burden of establishing a prima facie case); Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U. S. 1, 7-8 (1934) (party who bears the burden of proof "bears a heavy burden of persuasion"); Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U. S. 104, 111 (1941) (party with the burden of proof bears the "burden of persuasion," though the opposing party may bear a burden
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