not applicable here. At the time of the fitness hearing in this case, the statute to which Owens refers (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 2—3) had been repealed, and no reviewing court had yet to address the burden-of-proof issue. Thus, there was no statute or other statement of the law which we may presume the trial judge followed. Furthermore, the record affirmatively shows that the trial judge misallocated the burden of proof to defendant. Finally, the State contends that defendant waived review of this issue by failing to raise the matter before the circuit court. We decline, however, to find waiver where, as here, both parties before the court, as well as the trial judge, all proceeded under an erroneous view of the .law. See People v. Bedford, 31 Ill. 2d 227, 229 (1964) (<HOLDING>). Our conclusion that the circuit court erred
holding that the burden of proof is on the claimant holding that a jury charge submitting preponderance of the evidence as the burden of proof was error that could be raised for the first time on appeal holding burden of proof is on one asserting an affirmative defense holding that defendants acquiescence in the misallocation of the burden of proof at pretrial fitness hearing was not a bar from asserting error as grounds for reversal on appeal holding that the burden of proof lies on the party asserting the protection of the work product doctrine