Neil, Warden v. Biggers
Decided on Dec. 6. 1972; 409 US 188

The constitutionality of a police department's "show-up" procedure is addressed in courts


A. Issues Discussed: Criminal Justice (procedure), 5th Amendment

B. Legal Question Presented:

Is an affirmance by an equally divided Court an actual adjudication barring subsequent consideration on habeas corpus, and, if not does the identification procedure violate due process?

A. Background:

Respondent Biggers was convicted of rape and sentenced to 20 years' imprisonment. The ruling was based on evidence that consisted in part by testimony concerning the victim's visual and voice identification of respondent at a police station "show-up." A "show-up" is a procedure in which police march a suspect in front of the victim and ask for identification, without the safeguard of requiring the victim to choose the defendent from among a group of people in a standard lineup.  

Officers showed Biggers to petitioner (the rape victim) at a police station approximately seven months after the crime occurred.  She had an opportunity to look him over and hear him utter the words "Shut up or I'll kill you." Based on his appearance and voice, she testified at trial that she had "no doubt" that the respondent was her assailant.  The police asserted that they used the "show-up" technique because they had difficulty finding for a lineup other individuals generally fitting respondent's description as given by the victim.

The Tennessee Supreme Court affirmed Biggers' conviction by an equally divided Court. Respondent then brought a habeas corpus action in District Court. After rejecting Biggers' contention,  the court stated that its affirmance was constituted on an actual adjudication within the meaning of 28 U.S.C. s 2244(c) and thus barred further review of the "show-up" identification in a federal habeas corpus proceeding. The District Court held that the claims were not barred and held that the police station identification procedure was highly suggestive in that the identifier was confronted with a single suspect whom the police clearly thought was the perpetrator. The Court of Appeals affirmed. Petitioner brought the case for review in the US Supreme Court.
B. Counsel of Record:
Opposing Side
Michael Meltsner argued the cause for respondent. With him on the brief were Jack Greenberg, Anthony G. Amsterdam, Avon N. Williams, Jr., and Z. Alexander Looby.
Bart C. Durham III argued the cause for petitioner.

C. The Arguments:
Opposing Side
“This Court's prior affirmance of Biggers' conviction, by an equally divided vote, is a jurisdictional bar tc consideration of the same issues in a federal habeas corpus hearing.

This Court has unequivocally stated that its divided affirmances are not stare decisis as to other parties, but are 'as conclusive and binding in every respect upon the parties as if rendered upon the concurrence of all the judges upon every question involved in the case.' 28 U.S.C. § 2244(c) provides that this Court's disposition 'at the instance of the [sane] prisoner' precludes the subsequent issuance of any writ of habeas corpus. Thus, Biggers' request for habeas consideration cannot be granted by a federal district judge.

In order to avoid duplication, amicus Attorney General of the State of New York respectfully refers this Court to a full analysis of these issues in the pending petition for certiorari in Ross v. Radich. The judgment of the Sixth Circuit should be reversed and the petition for writ of habeas corpus should be dismissed.” – Brief of the Attorney general of the State of New York in Neil v. Biggers
Opposing Side
Shirley Fingerhood, Richard G. Green, Burt Neuborne, and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. Louis J. Lefkowitz, Samuel A. Hirshowitz, and Maria L. Marcus filed a brief for the Attorney Ceneral of the State of New York as amicus curiae urging reversal.

"2244(b) shields against senseless repetition of claims by state prisoners without endangering the principle that each is entitled, other limitations aside, to a redetermination of his federal claims by a federal court on habeas corpus… This subsection embodies a recognition that if this Court has ‘actually adjudicated’ a claim on direct appeal or certiorari, a state prisoner has had the federal redetermination to which he is entitled. A subsequent application for habeas corpus raising the same claims would serve no valid purpose and would add unnecessarily to an already overburdened system of criminal justice...

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Applying these factors, we disagree with the District Court's conclusion…

We find that the District Court's conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant's approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had ‘no doubt’ that respondent was the person who raped her...

[T]here was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.

Held: the judgment is affirmed in part, reversed in part and remanded."
Justice Vote: 3 Pro vs. 5 Con
  • Powell, L. Con (Wrote majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Douglas, W. Pro (Joined dissenting opinion)
  • Stewart, P. Pro (Joined dissenting opinion)
  • Marshall, T. Took no part in the consideration or decision of the case

    The ACLU filed as amicus urging affirmance; the US Supreme Court affirmed in part but reversed and remanded the ruling of the United States Court of Appeals for the Sixth Circuit in a 5-3 vote, giving the ACLU an apparent loss.