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The ‘facts in issue’ are the issues of fact which the prosecution or plaintiff must prove in order to succeed, along with the issues of fact which the accused or civil defendant must prove in order to establish his defence. The term ‘ultimate probandum’ is sometimes used to represent what the prosecution or plaintiff must ultimately prove. The party who is obliged to prove a particular fact in issue is said to bear the ‘legal burden of proof’ that issue (15.1 post). The facts in issue depend on the substantive law and what, if anything, has been ‘formally admitted’ by the parties. The substantive law identifies the facts in issue for the type of case before the court, but once a fact has been formally admitted it ceases to be in issue and need not be proved (15.6.3 post).
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