In practical effect, there may be no difference between a presumption that shifts the burden of persuasion
from the government to the defendant and a true affirmative defense.
Again, this diagrammatic representation of the traditionally viewed burden of persuasion
appears fairly compatible with traditional probability.
wishes and to place the burden of persuasion
for this defense on the
Assigning first the burden of persuasion
to the accused and second to the government makes no sense without the intervening opportunity to bring more evidence to bear on the question of the existence of the affirmative defense.
There is no statute for the defense of being misinformed or otherwise prevented from complying with registration requirements, and the case law is silent as to (1) which party bears the burden of persuasion
of the affirmative defense and (2) the standard for the burden of persuasion
188) Even with the Court's discussion of the burden of persuasion
in Johnson, the Court once again fails to explicitly state the defendant's evidentiary burden for proving the facts.
Unlike a pretext case where the burden of persuasion
remains at all times with the plaintiff, a mixed-motive case shifts the burden of production to the defendant and requires the defendant to convince the fact finder that it would have reached the same decision but for the presence of discrimination as a motivating factor in the decision.
A chapter entitled "Procedure" outlines how and when to make objections to discovery requests directed toward privileged material, the burden of persuasion
and proof necessary to sustain the privilege, the use of in-camera proceedings by the court, and protective orders directed toward privileged material.
The taxpayer failed to meet this burden of persuasion
This is only a burden of production, and not of proof; the burden of persuasion
remains at all times with the plaintiff.
Surprisingly, the court was silent as to the burden of persuasion
for affirmative defense, instead directing the trial judge to decide the issue of who bears the burden of proof.
W]hile the plaintiff could meet her burden of production by identifying an accommodation that facially achieves a rough proportionality between costs and benefits, an employer seeking to meet its burden of persuasion
on reasonable accommodation must undertake a more refined analysis.