Cite as: 512 U. S. 267 (1994)
Souter, J., dissenting
usage . . . ." J. Thayer, A Preliminary Treatise on Evidence at the Common Law 385-386 (1898). Thayer described Chief Justice Shaw's unsuccessful attempts to restrict the Massachusetts courts to the other (burden of persuasion) meaning of the phrase, id., at 355-357, 385-387, and n. 1, and argued that since the "widest legal usage" of the phrase and "the use of the phrase in ordinary discourse" was to mean burden of production, burden of proof should only be used in that sense, see Thayer, The Burden of Proof, 4 Harv. L. Rev. 45, 69 (1890).
Although the Court works hard to show that the phrase had acquired a settled meaning in the alternative sense by the time the APA was passed in 1946, there is good evidence that the courts were still using the term either way and that Congress followed Thayer. Indeed, just nine years after Hill v. Smith, 260 U. S. 592 (1923), in which Justice Holmes is said to have firmed up the use of "burden of proof" to mean burden of persuasion, this Court reverted to using the phrase in its burden of production sense instead.1 See Heiner v. Donnan, 285 U. S. 312, 329 (1932) ("A rebuttable [prima facie] presumption clearly is a rule of evidence which has the effect of shifting the burden of proof") (citing Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 43 (1910) (stating that "[t]he only legal effect of this [presumption] is to cast upon [defendant] the duty of producing some evidence to the contrary")). In such usage Heiner appears in line with Hawes v. Georgia, 258 U. S. 1 (1922) (upholding rebuttable presumption casting "burden of proof" on defendant in criminal case); see Tot v. United States, 319 U. S. 463, 470-471 (1943) (describing Hawes as involving statutory provision that permissibly "shift[ed] the burden of proof" once a prima facie case was made by prosecution). And courts just three years before the passage of the APA held that burden of proof was at least sometimes used by Congress to mean
1 One can hardly blame the great Justice, who had left the bench at the beginning of that year.
283
Page: Index Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: October 4, 2007