Appendix — Neil v. Biggers

INDEX

In the United States District Court

Middle District of Tennessee

Nashville Division

Archie Nathaniel Biggers,

Petitioner,

ee } Civil Action No. 5120

Lake F. Russell, Warden,

Tennessee State Penitentiary,

é Respondent.

te et ty As 4” ee ee :

NON Re hoe Orne ak ov te Ae vieis 6'6's's'p.6 bine: AS

Petition for a Writ of Habeas Corpus and for

Leave to Proceed in Forma Pauperis,

WOE AGA ON we ie sheds bes pahesiewae 6-666 A. 6

Motion to Dismiss, August 6, 1968 ............ A; 37

Co ae Oe fo eae

Affidavit of Avon N. Williams, Jr., fine 17, 1969

Affidavit of Mrs. Flora Marie Hammonds,

Se SE! oo! Dae ne eer ee eee A. 26

Affidavit of Archie Nathaniel Biggers,

je Si RN re ee A. 29

| PE) ga) RR 6) SUN ag ae A. $1

Order, April 17, 1970 ....... Renee oes eas eee cis A. 32

Motion to Reconsider, April 24, 1970 pace es cite A. 44

Order, @May 4, 1970 .......00. saueiclsinigte so 'e.8 5/6) A. 45

motice of Appeal, May 11,1970 cscccecccicceecce

INDEX (Continued)

TRANSCRIPT OF PROCEEDINGS

Appearances CCC CSOT ESE ETE DEE OSE EEE EE EOE Oe

PE 06 iS vases bobsde ones eesecece eeesesesecce

Opening Statement of Respondent .

Testimony of William A. McDaniel, r—

Direct Examination ........cccccccccccccce

Cross-Examination ..........ccccccccccees

Redirect Examination ............. jeneeeon

Testimony of Dr. Irwin Pollack—

Direct Examination ......... TrereTee cc rere

Cross-Examination ...........ccccccceuce

Redirect Examination .............ccceece

Testimony of Flora Marie Hammonds —

Direct Examination .............. $tevenes

Cross-Examination ...........ccccccecece

Testimony of Margaret Frances Beamer —

Direct Examination ................. cbse

Cross-Examination ............cccccccece

Testimony of Floyd Bailey —

Direct Examination ...... écneseas esenee i.

Cross-Examination ............cccceuce oi

Curriculum Vita, Irwin Pollack ............ :

Proceedings —Opening Statement of Petitioner .. |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No. 71-586

\ - WILLIAM S, NEI WARDEN,

aes os

Petitioner,

ARCHIE NATHANIEL BIGGERS,

Respondent.

a

ON WRIT OF CERTIORARI TO THE UNITED STATES

) COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR CERTIORARI FILED OCTOBER 27, 1971

CERTIORARI GRANTED FEBRUARY 28, 1971

A. 2

Introductory Statement

May it Please the Court:

By Order of February 28, 1971, this Court granted the

motion of Petitioner to use the record in No. 237, October

Term, 1967. That record may be found in Volume Si,

Transcripts of Records and File Copies of Briefs, Nos. 232-

237, Supreme Court of the United States, October Term,

1967, in the library of the United States Supreme Court.

The transcript of the record-used in 1967 together with

the file copies of the briefs found in said Volume 51 is

complete with the exception of the transcript of oral argu-

ment when this case was heard January 15, 1968. That

oral argument has been transcribed and filed in this cause

as Appendix J (found in "Motion for Leave to Supplement

Appendix to Petition for Writ of Certiorari") (in blue cover, )

Also a part of the record in No. 237, October Term,

1967, was the order of this Court granting certiorari

(Appendix H at page A67 in the petition for certiorari),

per curiam opinion affirming the judgment below (Appendix G

in the petition for certiorari, at A61) and the order of this

Court denying a petition to rehear (Appendix F to the peti-

tion for certiorari, at A60).

This Appendix contains all the relevant items, opinions

and judgments except as above stated and except the opinion

of the United States Court of Appeals for the Sixth Circuit

which is found in the appendix to the petition for writ of Y?

certiorari as Appendix A at pages Al-A38, *

* The Sixth Circuit Opinion (Appendix A) and the transcript of oral argument

in 1968 (Appendix J) (in blue cover), have not been reprinted in this single

appendix in accordance with the Clerk's memorandum to counsel which ad-

vises that these need not be reprinted where they were previously included

in a printed petition for certiorari.

A. 3

In The

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

.

ARCHIE NATHANIEL BIGGERS,

Petitioner,

v .

LAKE F. RUSSELL, Warden

Tennessee State Penitentiary

Nashville, Tennessee,

> Civil Action No. 5120

Respondent. 7

RELEVANT DOCKET ENTRIES

July 1, 1968 Order entered by Judge William

E. Miller directing Clerk to file petition for writ of habeas

corpus in forma pauperis; Copy to be served on the At-

‘tomey General, State of Tennessee; Respondent to filé

his answer within the time allowed by law; respondent

will submit affidavits in support of his position, and peti-

tioner shall have 15 days thereafter to file his own affi-

davit in support of the allegations in his petition and to

propound written interrogatories to the respondent's af-

fiants. After the affidavits and interrogatories have been

filed, the Court will determine what further action is re-

quired.

August 6, 1968 Motion to Dismiss filed by

A. 4

Docket Entries

- defendant, with Exhibits A & B. Certificate of service

attached. .

May 12, 1969 Order Entered: Respondent's

Motion to Dismiss is denied; Evidentiary Hearing required

to determine factual issues; Clerk to set hearing; Merits

of Petitioner's contentions will be deferred until after hear-

ing (Att. copy to Petitioner, to Hon. Avon Williams and

Hon. James C. Dale).

May 28, 1969 Filed: ANSWER of Respondent,

c/s attached.

June 9, 1969 Filed: Brief of Petitioner,

c/s attached.

June 17, 1969 Filed: Affidavit of Avon N.

Williams, Jr. on behalf of plaintiff.

June 17, 1969 Filed: Affidavit of Mrs.

Marie Hammons - on behalf of plaintiff,

June 17, 1969 Filed: Affidavit of Archie

Nathaniel Biggers, Petitioner.

July 29, 1969 Order Entered: Evidentiary

hearing - confined to issues set forth in order - to be set

by Clerk. Attested copy to attomeys of record and to

petitioner, Archie Nathaniel Biggers.

April 17, 1970 Order entered granting peti-

tion for writ of habeas corpus, and discharging the peti-

tioner from custody after the state has had a reasonable

time to retry him upon the same charge. Copy to at-

torneys of record and to the petitioner.’

April 24, 1970 Motion to reconsider filed by

respondent, with brief in support thereof. Certificate of

service attached.

May 4, 1970 Order entered denying respond-

ent'’s motion to rehear. Copy to attomeys of record.

May 11, 1970 Filed: Respondent's Notice of

Appeal from Order entered April 17, Att. copy mailed to

attorneys for Petitioner, Avon N. Williams and Nichael

Meltsner.

A.,5

In The United States District Court

Middle District of Tennessee, Nashville Division

[Title Omitted in Printing]

. ORDER

(Received for Entry 2:30 P.M., July 1, 1968)

The Clerk is directed to file in forma pauperis the peti-

tion of Archie Nathaniel Biggers for writ of habeas corpus.

A copy of the petition and order will be forwarded to

the Attorney General, State of Tennessee, Nashville.

The Respondent is directed to file his answer within

the time allowed by law to show cause why the writ of

habeas corpus should not issue. Respondent will submit

affidavits in support of his position on all factual issues,

and Petitioner shall have fifteen days thereafter to file his

own affidavit in support of the allegations in his petition

and to propound written interrogatories to the Respondent's

affiants, or to file answering affidavits of other affiants.

After such affidavits and any interrogatories have been

filed with the Clerk, the Court will determine what further

action is required.

/s/ Wm. E. Miller

UNITED STATES DISTRICT JUDGE

A. 6

{fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

(Title omitted in printing]

PETITION FOR A WRIT OF HABEAS CORPUS AND

FOR LEAVE TO PROCEED IN FORMA PAUPERIS

(Filed July 1, 1968)

TO: The Honorable William E. Miller

United States District Judge

I (jurisdiction)

This is an application for a writ of habeas corpus to

relieve the petitioner of restraint under a conviction im-

posed upon him by the State of Tennessee in violation of

the Constitution of the United States. A United States

District Court is authorized to entertain the application

by 28 U.S.C. §2241(a) (1964).

II (Petitioner)

(A) Petitioner is a citizen of the United States and is

a resident of the State of Tennessee. He is a pauper and

because of his poverty, he is unable to pay the

(fol. 2] cost of this action and is unable to give security

for same. Petitioner is currently imprisoned

at the Tennessee State Penitentiary.

(B) Petitioner, a Negro, was found guilty of rape and

sentenced to twenty years in prison in the Criminal Court

of Davidson County, Tennessee on December 3, 1965.

His conviction and sentence were affirmed by the Tennes-

see Supreme Court on January 12, 1967, 411S.W.2d 6%.

Petition for rehearing was denied on March 1, 1967. A

petition for a writ of certiorari in the Supreme Court of

the United States was granted and the judgment affirmed

Ay?

Petition for Writ of Habeas Corpus, Etc.

by an equally divided court, _,, U.S. _,,, 19 L. Ed. 2d

1267, 88S. Ct., on March 18, 1968. A petition for re-

hearing was denied April 22, 1968.

III (Respondent)

The respondent in this action is Lake F. Russell,

Warden of the Tennessee State Penitentiary, who has cus-

tody of petitioner.

IV (Circumstances of the Offense, Arrest,

Identification, and Trial)

(A) On the night of January 22, 1965, Mrs. Margaret

Beamer, a 39-year old Negro woman, was raped by an in-

truder. Brandishing a large butcher knife the assailant

entered her house through a rear door, grabbed her from

behind in an unlit hallway and threw her to the floor.

Mrs. Beamer's attention was drawn to the attacker's knife

and she was in fear for her life.

(B) Hearing her mother shout, Mrs. Beamer's 13-

year old daughter ran into the hallway. She approached

within a foot of the intruder, whose face was tumed to-

ward her, before being ordered back into her bedroom.

The intruder then took Mrs. Beamer out of the house

through an unlit kitchen up a railroad embank -

(fol. 3] ment to a nearby patch of woods there he raped

her. The events surrounding the crime lasted

from 10 to a maximum of 30 minutes.

(C) During the following seven months, the police re-

quested Mrs. Beamer to look at police photographs on

several occasions and although she identified the picture

of one man who was not petitioner as “having features"

like the rapist, the case lay dormant.

A. 8

Petition for Writ of Habeas Corpus, Etc.

(D) During the evening of August 16, 1965 petitioner,

a 16-year old Negro male, with no criminal record, was

receiving medical treatment at Hubbard Hospital in Nash-

ville, Tennessee where he had gone with his mother.

They were accosted by a police officer who mentioned that

a woman (Mrs. Silverman) had been assaulted in the Bor-

deaux area of Nashville, and sought to take Biggers to her

home for attempted identification. On the officer's

promise to return petitioner home immediately thereafter,

his mother reluctantly agreed. The officer then took pe-

titioner to Mrs. Silverman's home where she attempted

to but could not identify him.

(E) Instead of taking petitioner home, the officer then

took him to the Juvenile Court Building where he was kept

outside in the car and questioned by officers for some time.

Thereafter the officers charged him with the offense of

loitering, took him into the Juvenile Court Building, and

left him there with the night attendant. By this time it

was dawn. He slept there until morning, when the police

picked him up and took him to the Metropolitan Jail. There

they questioned him about two hours, then put him in a cell.

(F) In the afternoon of August 17, petitioner was brought

into the presence of Mrs. Margaret Beamer who identified

him as the person that had raped her seven months earlier.

Petitioner's mother and counsel retained by his mother

after his arrest were not notified of or present

(fol. 4] at the identification proceeding. The circum-

stances of the identification were as follows:

(G) On August 17th the police went to Mrs. Beamer's

home and brought her to the police station, telling her that

they wanted her to “look at a suspect" in one of the rooms

in the detective division, The police brought petitioner

into the adjoining hall and then to the doorway of the room

A.9

Petition for Writ of Habeas Corpus, Etc.

in which Mrs. Beamer was seated. Mrs. Beamer was

shown petitioner in the doorway in the presence of at

least five policemen. Although a lineup could easily have

been assembled, petitioner was presented as the only sus-

pect. Mrs. Beamer asked the police to have petitioner

speak, and the police instructed him to repeat words

spoken by the rapist at the time of the offense: ‘Shut-up,

or I'll kill you."" Only after she heard him speak the

rapist's words did Mrs. Beamer identify Archie Biggers

as the man who had raped her.

(H) An August 17th edition of the Nashville Tennes-

sean, carried a front page story of the Silverman assault

and petitioner's arrest. Although not named, petitioner

was described therein as a "burly-16-year old Negro."

According to the article, he had been identified by the

victim; the police were questioning him in connection

with similar incidents and would confront him with victims

of these earlier incidents. An August 18th edition of the

paper showed a picture of petitioner entering jail and

stated that he had confessed to attacking Mrs. Silverman;

that Mrs. Margaret Beamer had identified him as her at-

tacker, and that two other attempted rape victims could

not identify him.

(I) At petitioner's trial the state initiated reference

to newspapers accounts of petitioner's arrest in order to

establish that Mrs. Beamer had identified petitioner be-

fore his photograph appeared on August 18th. The trial

record does not show whether Mrs. Beamer had seen the

first story in the Tennessean published on the

{fol. 5] morning of the 17th. On information and be-

lief, she saw that story.

(J) Petitioner was indicted for the rape of Mrs. Beamer

on October 1, 1965 and tried two months later. At trial,

A. 10

Petition for Writ of Habeas Corpus, Etc.

the only evidence connecting him with the rape was Mrs.

Beamer's identification. Her thirteen-year old daughter

testified to what she saw but was unable to identify peti-

tioner as the rapist.

(K) On direct examination four of the five police of-

ficers who were present at the pre-trial identification de-

scribed Mrs. Beamer's identification of Biggers at the

police station. Petitioner's counsel objected that this

testimony served to bolster the impact of the identifica-

tion on the jury but the objection was overruled.

(L) Petitioner testified in his own behalf and denied

that he committed the act charged. He also told the jury

that the police directed him to speak the words of the

rapist and that Mrs. Beamer did not identify him until

after he had spoken. Petitioner's mother, stepfather,

and seven friends and neighbors testified that petitioner

was an obedient and truthful young man of good reputation

who had never before been in "trouble."

(M) In his summation, the prosecuting attomey char-

acterized the issue in the case as one of identification.

He repeated Mrs. Beamer's identification testimony and

related a story concerning a case that he had tried, the

point of which was that violence and terror result in ac-

curate identification:

(fol. 6] In many parts of our United States, Gentle-

men of the Jury, a case of this nature would

1 Mr. Williams; ——that it is immaterial, — that I objected to on the

other— it is immaterial and incompetent. She has already testified with

regard to how identification — and that identification has to be weighed

by the Jury on the basis of what she has testified, not on the basis of what—

of this happened— a test to try to build it up by having about three or four

police officers come in here and say, Why, yeah, I saw her identify him.

That is not evidentiary, Your Honor.

ye |

Petition for Writ of Habeas Corpus, Etc.

never go to trial, and I'm sorry to say, it's all south

of the State of Tennessee, and that is because of this

fine woman, Mrs. Beamer's environment, economic

circumstances, and situation, she's not considered in

those states to.have any more rights than a dog and

her reproductive organs —.

On the basis of Mrs. Beamer's identification the only evi-

dence linking petitioner to the rape, the jury found Archie

Biggers guilty and he was sentenced to the State Vocational

Training School for Boys for twenty years 2

(N) The trial of the case began on November 29, 1965

and ended December 3, 1965. The selection of a jury en-

tailed a voir dire of well over one hundred veniremen, and

a special venire of one hundred-eleven prospective jurors

had to be subpoenaed by the Court for December 1, 1965

in order to complete the selection of the jury. The ma-

jority of the veniremen admitted on voir dire that they had

read newspaper reports about the arrest of petitioner on

several charges of rape in the Fall of 1965. Some of

those seated on the jury which tried the case admitted

that they had read such news stories.

(O) At the time of trial petitioner had no real estate

or other valuable property, and was unemployed, having

been confined to jail since his arrest on August 17, 1965.

His mother, Mrs. Flora Marie Hammons, likewise had

and has no valuable property, and is and has been for

many years a domestic servant earning approximately

$37.50 per week. Petitioner has no father, having been

bom out of wedlock.

Although petitioner was originally sentenced to an institution for youth-

ful offenders, he has been placed in the Tennessee State prison, a facility

for adults,

A. 12

Petition for Writ of Habeas Corpus, Etc.

(P) These facts relating to the indigency of Biggers

were stated, in substance, to the trial judge upon the hear -

ing of the motion for new trial in the case and also upon

the hearing of a post-trial motion seeking a re-

(fol. 7] consideration of the trial court's action in deny-

ing a state-furnished transcript of the evidence.

The voir dire examination of prospective jurors alone

would have required several hundred pages to be tran-

scribed. Petitioner and his mother were unable even to

pay for a transcript of the evidence itself, so that petition -

er's counsel was compelled to advance payment for a

transcript of the evidence. Counsel were unable to ad-

vance the sum necessary for transcription of the extensive

voir dire and were therefore obstructed in the preparation

of the motion for new trial and the appeal in this case, and

forced to forego presentation of all issues of State and fed-

eral constitutional law arising out of the selection of the

jury.

V (First Claim)

By presenting petitioner for identification without a line-

up and without notifying his parents or retained counsel,

and by making him speak the words of the rapist in the

absence of circumstances justifying such a procedure,

the State violated his rights under the Due Process Clause

of the Fourteenth Amendment. This "showup" method

of procedure was so impermissively suggestive as to give

rise to a very substantial likelihood of irreparable mis-

identification as shown, in part, by the following circum-

stances:

(1) Mrs. Beamer's identification of petitioner was un-

corroborated.

A. 13

- Petition for Writ of Habeas Corpus, Etc.

(2) Her thirteen year old daughter was unable to iden-

tify petitioner.

(fol. 8] (3) Mrs. Beamer's opportunity to observe

her assailant has been conceded by the State to

have been “limited."" She never saw him in direct light

and could only observe him for from 10 to 30 minutes.

(4) Petitioner was described to Mrs. Beamer as a

"suspect" by the police.

(S) He was compelled to speak the inflammatory words

used by the rapist without opportunity being afforded for

comparison.

(6) The gap between the crime and the identification

was seven months.

(7) The State treated the jury in a manner which sub-

stantially impaired its capacity to appraise the identifica-

tion objectively: newspapers were used as a forum for

grossly prejudicial comment on the case; the jury was

selected from persons exposed to this comment; the

jurors were reminded of the harmful stories by the prose-

cution or voir dire and at trial; police officers were per-

mitted to testify again and again to the fact of identifica -

tion although it was not controverted; finally, the jury

was subjected to a summation which the Supreme Court

of Tennessee characterized as appealing to racial preju-

dice and which that aia ec to be error, albeit non-

reversible.

VI (Second Claim)

By compelling petitioner to speak the words used by the

rapist and by introducing his speech as evidence of peti -

tioner's guilt on direct examination, the State denied peti -

A, 14

Petition for Writ of Habeas Corpus, Etc.

tioner's privilege against self-incrimination as guaranteed

by the Fifth and Fourteenth Amendments to the Constitution.

VII (Third Claim)

By admitting in evidence the identification of petitioner,

obtained as a result of a pre-trial confrontation

(fol. 9] held while petitioner was unlawfully arrested,

the state violated rights guaranteed to him by

the Fourth and Fourteenth Amendments to the Constitution .

VOI (Fourth Claim)

By refusing to require the state to defray the costs of

preparation of the transcript of evidence despite his plain

indigency the state denied petitioner's rights under the

Due Process Clause and Equal Protection Clause of the

Constitution.

IX (Fifth Claim)

By affirming petitioner's conviction despite the inflam-

matory and prejudicial remarks of the prosecuting attorney

in his summation to the jury suggesting that because prose-

cutrix was a Negro woman he would not have been brought

to trial in states south of the State of Tennessee and re-

lating her reproductive organs to those of a dog, Tennes-

see violated the Due Process and Equal Protection Clauses

of the Fourteenth Amendment. This argument was mani-

festly improper and calculated to unduly inflame and preju-

dice the jury and unduly motivate its conviction of defend -

ant on bases other than evidence introduced in the case

and on racial grounds.

A. 15

Petition for Writ of Habeas Corpus, Etc.

X (Sixth Claim)

The totality of circumstances surrounding petitioners

conviction especially, that there was absolutely no evi-

dence connecting defendant with the offense except the in-

substantial identification made by the prosecutrix and the

prejudicial evidence to which the jury was exposed violated

petitioner's right to a fair trial as protected by the Due

Process Clause of the Fourteenth Amendment.

{fol. 10) ~ XI

Petitioner has exhausted all available state remedies

and no previous petition for writ of habeas corpus has

been filed in this matter.

WHEREFORE, petitioner respectfully requests: ~

1) That a writ of habeas corpus be directed to re-

spondent;

2) That respondent be required to appear and answer

the allegations of this petition;

3) That petitioner be accorded an evidentiary hearing

on the allegations of this petition;

4) That after a full and complete hearing petitioner

be relieved of the unconstitutional conviction and sentence

imposed upon him;

5) That petitioner be allowed such other, further and

alternative relief as may seem just, equitable and proper

under the circumstances;

6) That petitioner be allowed to file this petition with-

out pre-payment of cost and that this proceeding be allowed

in forma pauperis.

A. 16

Petition for Writ of Habeas Corpus, Etc.

pi ee ee ee

Respectfully submitted,

AVON N. WILLIAMS

Charlotte at Fourth

Nashville, Tennessee

JACK GREENBERG

MICHAEL MELTSNER

10 Columbus Circle

. New York, New York 10019

ANTHONY G. AMSTERDAM

3400 Chestnut Street

Philadelphia, Pa. 19104

Attorneys for Petitioner

VERIFICATION

State of Tennessee _ )

) SS.

County of Davidson )

Archie Nathaniel Biggers being first duly sworn upon

oath according to law, deposes and says that he has read

the foregoing petition, and that he knows the contents

thereof to be true except as to such matters as are stated

upon information and belief and these he verily believes

to be true and that he believes he is entitled to the relief

sought therein.

/s/ Archie Nathaniel Biggers

Sworn to and subscribed before me this

18th day of June, 1968

/s/ Signature Ilegible

A. 17

(fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

MOTION TO DISMISS

(Filed August 6, 1968)

The petitioner was convicted in Davidson County for

the offense of rape on December 3, 1965 and received a

twenty (20) year sentence.

Certified copies of the technical record and bill of ex-

ceptions are attached hereto as Exhibits A and B respec -

tively.

This judgment of conviction was duly appealed to the

Tennessee Supreme Court and was confirmed by that

Court in the reported decision of Biggers v. State, 219

Tenn. 553, 411S.W.2d 696 (1967). The United States

Supreme Court granted certiorari and affirmed by an

equally divided court. Biggers v. State of Tennessee,

390 U.S. 404 (1968).

(fol. 2] The crux of the instant petition is that the

petitioner was denied his Fifth, Sixth and Four-

teenth Amendment rights regarding the circumstances of

his identification by the victim, This issue has been |

fully considered and decided adversely to the petitioner

by both the Tennessee Supreme Court and the Supreme

Court of the United States.

It is further submitted that the petitioner's last three

contentions, under the facts and circumstances of the in-

stant case, simply do not rise to the dignity of a denial of

constitutional due process. For the foregoing reasons,

the respondent respectfully moves that the petition for

writ of habeas corpus filed in this case be dismissed and

denied

A. 18

Mution to Dismiss

/s/ David W. McMackin

DAVID W. McMACKIN,

Assistant Attorney General,

Supreme Court Building,

Nashville, Tennessee.

[Certificate of Service Omitted]

A. 19

[fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

ORDER

(Received for Entry 4:15 P.M., May 12, 1969)

This action involves a motion by the respondent to dis -

miss the petition for writ of habeas corpus filed by Archie

Nathaniel Biggers. The petitioner was convicted of rape

in the Criminal Court of Davidson County, Tennessee, in

1965. The judgment was affirmed by the Supreme Court

of Tennessee and then by an equally divided Supreme Court

of the United States early in 1968. Biggers has now peti-

tioned the Court for a hearing on his writ of habeas corpus,

pursuant to 28 U.S.C. 82241.

Respondent maintains that the constitutional questions

here raised by the petitioner have been fully considered

and decided adversely to him by the United States Supreme

Court. It is the position of the respondent that the Court

should not, therefore, redetermine the same issues.

Though the present case has been argued before the

Supreme Court, the decision of that Court is without force

as precedent. When the Supreme Court is

[fol. 2] equally divided as to the outcome of a case, the

judgment is automatically affirmed without ‘

opinion. Etting v. Bank of the United States, 24 U.S. 59

(1826). Had there been a more conclusive decision re-

garding the legal questions in the present case, the Court

could easily decline any further review. There would be

little reason for the Court to rehear arguments previously

rejected by the highest judicial authority. But the Supreme

Court did not settle the merits of this case, and affirmed

only through an equal split in opinion. The Court there-

fore concludes that it is not precluded from hearing evi-

A. 20

Order, 5/12/69

dence on- the petitioner's allegations, and the respondent's

motion to dismiss is hereby denied.

The Court being of the opinion that an evidentiary hear -

ing is required to determine the factual issues in this

cause, it is ORDERED that a hearing be set by the Clerk

at the earliest time consonant_with the Court Calendar.

Ary analysis of the merits of the petitioner's contentions

will be deferred until after the evidentiary hearing.

/s/ Wm. E. Miller

UNITED STATES DISTRICT JUDGE

A, 21

[fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

ANSWER

(Filed May 28, 1969)

The Respondent, Lake F. Russell, Warden, Tennessee

State Penitentiary, for answer to the Petition for a writ of

habeas corpus, filed against him in the above cause, says:

L

Respondent admits that he is the duly appointed and

qualified warden of the Tennessee State Penitentiary at

Nashville, Tennessee, and that Petitioner, Archie

Nathaniel Biggers, is presently therein confined, having

been convicted of the crime of rape in the Criminal Court

of Davidson County, Tennessee, on December 3, 1965,

and having been sentenced to a term of twenty (20) years

in prison. Petitioner's conviction was affirmed by the

Tennessee Supreme Court on January 12, 1967, the opinion

of such Court appearing in 411S.W.2d 696. Subsequent

to the denial by the Tennessee Supreme Court of a Petition

for rehearing, a Petition for a writ of certiorari was

granted by the Supreme Court of the United States and the

judgment of the Tennessee Supreme Court affirmed by an

equally divided Court, 19 L. Ed. 2d 1267, on March 18,

1968, after which decision a Petition for rehearing was

denied.

4

(fol. 2] Il.

Respondent denies that any rights of Petitioner were

violated by the procedures employed by the Metropolitan

Police Department in presenting Petitioner, then a suspect,

to the victim of his crime. Petitioner here seeks to attack

A, 22

Answer of Warden

the sufficiency of the identification evidence, a matter not

appropriate for inquiry on Petition for writ of habeas corpus.

Ill.

Respondent denies that Petitioner's privilege against

self-incrimination was in any way violated by his being

asked to speak the words used by the rapist, and Respond -

ent further denies that “such speech" was introduced on

direct examination with the exception of the victim's tes-

- tifying as to the words that the rapist spoke.

IV.

Respondent denies that the refusal of the trial judge to

require the State to defray the cost of preparation of the

transcript of evidence in any way denied any right of Peti-

tioner since a hearing was held and it was determined

that Petitioner was not an indigent.

V.

Respondent denies that any right of Petitioner was vio-

lated by alleged inflammatory and prejudicial remarks

made by the prosecuting attomey since such remarks were

immediately objected to by defense counsel, the trial judge

just as immediately sustained the yobjection, and the prose-

cuting attorney forthwith abandoned that line of comment.

Wis

Respondent denies that Petitioner was denied a fair

trial and again would point out to the Court that

(fol. 3] the entire thrust of the petition for habeas corpus

filed herein is an attack upon the sufficiency of

the evidence adduced at the trial of Petitioner.

A, 23

Answer of Warden

VII.

Respondent admits that Petitioner has exhausted all

available state remedies but submits to the Court that for

the reasons stated in the motion to dismiss hereinbefore

filed that the petition for writ of habeas corpus should be

dismissed.

Respondent further denies generally all things not here-

inbefore specifically denied and having fully answered asks

the Court to dismiss the petition for habeas corpus and to

require the Petitioner to complete the service of his time.

/s/ James C. Dale, Il

James C. Dale, III

Special Counsel

State of Tennessee

709 Nashville Bank & Trust Bldg.

Nashville, Tennessee 37201

[Certificate of Service Omitted]

A. 24

(fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

AFFIDAVIT OF AVON N. WILLIAMS, JR.

(Filed June 17, 1969)

STATE OF TENNESSEE

DAVIDSON COUNTY

Avoa N. Williams, Jr., after being duly sworn accord-

ing to law, deposes and says:

That deponent is one of the counsel of record for the

petitioner, Archie Nathaniel Biggers, in the above case

and is a member of the Bar of the State of Massachusetts

and Tennessee, the United States District Courts for the

Eastern, Middle and Western Districts of Tennessee, the

United States Court of Appeals for the Sixth Circuit, and

the Supreme Court of the United States, and has been

practicing lawyer in the State of Tennessee since 1948.

That the document attached hereto marked Exhibit "A"

is a true and correct copy of the transcript of the record

in the above case filed in the Supreme Court of the United

States during its October Term, 1967, as Case No. 237

on Writ of Certiorari to the Supreme Court of Tennessee,

Middle Division, and that said transcript of the record

contains a true and correct transcript of the record of

trial in the above case before the Criminal Court of David-

son County, Tennessee, Division I, and of the proceedings

on appeal in the Supreme Court of Tennessee. That the

deponent has examined the petitioner's personnel record

in the Juvenile Court of Davidson County, Tennessee, and

that the said record shows he was arrested at 5:25 A. M.

8-17-65 on a technical charge of lottering issued from the

Juvenile Court after (according to the affidavits of Mrs.

A, 25

Affidavit of Avon N. Williams, Jr.

Flora Marie Hammonds and petitioner) having been seized

about 11:00 P.M. at Hubbard Hospital by Metropolitan De-

tectives, submitted to Mrs. Carrie B. Silverman for an

unsuccessful identification, and questioned at

[fol. 2] some length and for several hours in a car out-

side the Juvenile Court Building in the early

morning hours of said day, before being turned over to

the Juvenile Court at 5:25 A.M.

FURTHER DEPONENT SAITH NOT.

/s/ Avon N. Williams, Jr.

Sworn to and subscribed before me

this 16th day of June, 1969.

/s/ Mrs. Mavis W. Donnelly

Notary Public

Commission Expires: 7-29-69

.S

A. 26

[fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

AFFIDAVIT OF

MRS. FLORA MARIE HAMMONDS

(Filed June 17, 1969)

STATE OF TENNESSEE

DAVIDSON COUNTY

Mrs. Flora Marie Hammonds, after being duly sworn

according to law, deposes and says:

That she is 38 years of age and resides at 2106-A

Scovel Street, Nashville, Tennessee, and is the mother

of Archie Nathaniel Biggers, the petitioner in the above

case. On 16 August 1965 said petitioner, then a 16 year

old child, arrived home at approximately 10:00 P.M. with

acuton his arm. The deponent took him to Hubbard

Hospital, Nashville, Tennessee, for treatment of same

reaching the hospital at about 10:30 P.M. Upon her ar-

rival, she noticed Metropolitan Police were already there

in connection with another case. A Negro detective in-

quired how petitioner got his arm cut. The petitioner

then told the detective about the dog chasing incident at

18th and Scovel wherein he fell and hurt his arm. The

Negro detective asked deponent for permission to take

petitioner back to 18th and Scovel at that time. Deponent

agreed to this upon the detective's promise to bring the

petitioner home immediately afterward. Deponent then

went home and, when the policeman did not return the

petitioner home, telephoned the Metropolitan Police Sta-

tion where the Police personnel to whom she talked seemed

to know nothing about the case. Finally, about 2:00 or

3:00 A.M., 17 August 1965, being extremely concerned,

a oe

A. 27

Affidavit of Mrs. Flora Marie Hammonds

deponent went to the Metropolitan Police Station and was

there advised by the Police that petitioner was across

town at the Juvenile Court Building, 2nd and Lindsley,

Nashville, Teanessee. She immediately went to the

Juvenile Court Building where she found the petitioner in

the custody of Metropolitan Police Officers who refused

to release the petitioner to his parent, the deponent, al-

though to the best of the petitioner's knowledge,

[fol. 2] said police officers had no warrant for the peti-

tioner's arrest or detention at that time. The

police officers advised deponent that petitioner had stated

he wanted to take a lie detector test the next morning be-

cause he had nothing to hide. Later that morning, 17

August 1965, deponent was telephoned by the Metropolitan

Police and requested to come down and take petitioner to

a State building for the lie detector test. She arrived at

the Juvenile Court Building about 8:00 A.M. that morning

to find that the Metropolitan Police had already taken the

boy from the Juvenile Court Building across town to the

Metropolitan Police Station. At this time, deponent tele-

phoned and engaged Mr. Z. Alexander Looby as attomey

for the petitioner. Mr. Looby advised her not to have

the child submit to a lie detector test. Deponent then

immediately stated to the Metropolitan Police that petitioner

was not to have a lie detector test on advice of his counsel

and that the petitioner was being represented by Mr. Looby.

Later that morning, deponent received a phone call from

Mr. Looby advising her to return to Juvenile Court and

pick up the petitioner since Mr. Looby had been informed

the only charge against the child was a warrant for lotter-

ing. However, when deponent reached the Juvenile Court

sometime late morning or early afternoon, the probation

officer there informed her that the petitioner had been re-

turned to the Police Station. When deponent returned to

A, 28

Affidavit of Mrs. Flora Marie Hammonds

the Police Station that afternoon (17 August 1965) she was

informed by the Police that the petitioner had now been

identified by a lady in Bordeaux on the charge of assault

with intent to ravish and also by a Negro woman on a

charge of rape and that he could not be released. Depon -

ent was not at any time advised or informed by the Metro-

politan Police or anyone else that the petitioner was being

subjected or submitted to a show-up or any other identifi -

cation procedures on 17 August 1965. Although the de-

ponent was continuously seeking to obtain the release of

the petitioner from the time when she first became con-

cerned and called the Metropolitan Police Station about

midnight or shortly thereafter on 16 August 1965, on to

the afternoon of 17 August 1965, she was never informed

by the Metropolitan Police of any charge against said

minor child and that the only information that she received

in that regard was that from her attorney about

(fol. 3) the lottering charge sometime after 8:00 A.M.

17 August 1965.

FURTHER DEPONENT SAITH NOT.

/s/ Mrs. Flora Marie Hammonds

Sworn to and subscribed before me

this 16th day of June, 1969.

/s/ Avon N. Williams, Jr.

Notary Public

Commission Expires: 8-7-71

_PLAINTIFF ‘'S EXHIBIT NO. 1

“FILED: November 4, 1969

CASE NO. 5120

BRANDON LEWIS, CLERK

BY /s/ Guy W. Cooper, D.C.

A, 29

[fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

AFFIDAVIT OF ARCHIE NATHANIEL BIGGERS

(Filed June 17, 1969)

STATE OF TENNESSEE

DAVIDSON COUNTY

Archie Nathaniel Biggers, after being duly sworn ac-

cording to law, deposes and says:

That he is petitioner in the above case and is now twenty

years of age, having been born 14 January 1949. On 16

August 1965, he was on his way home in the evening be-

tween 9:00 and 10:00 P.M. when he was attacked by dogs

at 18th and Scovel Street, Nashville, Tennessee, and cut

his arm when he fell to the ground in process of chasing

them off. On reaching home, he was taken to Hubbard

Hospital by his mother, Mrs. Flora Hammonds, and

there they were accosted by a policeman who asked how

he had received his injury. The petitioner told the police-

man about the incident at 18th and Scovel, whereupon the

policeman and deponent's mother held a conversation which

resulted in the policeman being allowed to take the petitioner

with them. The Metropolitan Police Officers then put the

petitioner in their car and took him to an area of Nashville

known as Bordeaux and to the home of a Mrs. Carrie D.

Silverman where they submitted him alone to Mrs. Silver-

man for identification. Mrs. Silverman attempted but

could not identify the petitioner. However, instead of

taking the petitioner home, the Metropolitan Police Officers

took the petitioner to the Juvenile Court Building where they

kept him outside in the car questioning him for a long time.

A. 30

Affidavit of Archie N. Biggers

Thereafter the officers took him into the Juvenile Court

Building and left him there with the night attendant. By

this time, it was dawn. Petitioner slept there until morn-

ing and had breakfast about 7:30 A.M., after which the

Metropolitan Police Officers picked him up and took him

to the Metropolitan Jail where they questioned him about

two hours and then put him in a cell. Later on that day

they brought him down from his cell and submitted him

alone to Mrs. Margaret Beamer, the prosecutrix

{fol. 2] in the above case, and to other women for identi-

fication.

FURTHER DEPONENT SAITH NOT.

/s/ Archie Nathaniel Biggers

Sworn to and subscribed

before me this 16th day of

June, 1969,

/s/ Avon N. Williams, Jr.

Notary Public

Commission Expires: 8-7-71

A. 31

[fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

ORDER

(Received for Entry 12:30 P.M., July 29, 1969)

In this habeas corpus proceeding, the Court remains of

the opinion, expressed in its Order entered on May 12,

1969, that an evidentiary hearing is required to determine

the issues in this cause. After reviewing the transcript

and briefs, the Court desires open court testimony on the

following matters: the nature of the "“show-up” identifi -

cation process as opposed to the "line-up" identification

process, and why the former process was employed in

the instant case; and, the general reliability of voice

identification procedures, and their relative importance

compared with other methods of identification in linking

the petitioner to the offense alleged in the instant action.

It is ORDERED that an evidentiary hearing, confined

to these issues, be set by the Clerk at the earliest time

consonant with the Court calendar.

/s/ Wm. E. Miller

UNITED STATES DISTRICT JUDGE

A. 32

(fol. 1] ty ‘The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

ORDER

(Received for Entry 8:30 A.M., April 17, 1970)

In this habeas corpus proceeding, the Court issued an

order on July 29, 1969, to the effect that an evidentiary

hearing should be held to determine whether or not there

were unconstitutional irregularities in the identification

process employed by the police in the instant case. This

identification procedure was the primary basis for peti-

tioner's indictment. In ordering such a hearing, the

Court was particularly concemed with the validity of the

so-called "show-up" identification method as it was used

by police and, also, the reliability and validity of voice

identification procedures utilized in the instant case. A

hearing on these issues was held on October 30, 1969,

and supplemental briefs were filed by both parties to the

action several weeks later.

Before reaching the merits of petitioner's claims, a

brief statement of the facts is in order. Petitioner,

Archie Nathaniel Biggers, when 16 years of age, was con-

victed on a charge of rape in a jury trial and sentenced to

20 years in prison. On appeal to the Supreme

(fol. 2] Court of Tennessee, the conviction was affirmed.

Biggers v. State, _.. Tenn. __, 411S.W.2d

696 (1967). The case was then accepted for review by

the Supreme Court of the United States on a writ of

certiorari. Biggers v.Tennessee, 390 U.S. 404 (1968).

Again, the conviction was affirmed. However, the af-

firmation was the result of an equally divided court and,

therefore, did not amount to an adjudication of the merits

of petitioner's claims so as to prevent him from bringing

the instant habeas corpus action. [See the May 12, 1969

A. 33

Order, 4/17/70

Order entered by this Court in the instant case; and also

see, Etting v. Bank of the United States, 24U.S. 59 (1826). ]

The pertinent operative facts in light ef the issues raised

in the current proceeding are as follows. On the evening

of January 22, 1965, Mrs. Margaret Beamer was attacked

at knife-point by an intruder who broke into her home.

Mrs. Beamer's screams aroused her thirteen-year old

daughter who rushed to the scene and also began to scream.

At this point, the intruder is alleged to have said to Mrs.

Beamer, "You tell her to shut up, or I'll kill you both."

This Mrs. Beamer did, whereupon she was taken from

the house to a spot two blocks away and raped, The en-

tire episode occurred in very dim light and the rape it-

self occurred in moonlight. As a result, Mrs. Beamer

could give only a very general description of her assailant,

describing him as being fat and flabby with smooth skin,

bushy hair and a youthful voice.

[fol. 3] Over a seven month period following the

crime the police showed Mrs. Beamer various

police photographs and had her attend several "line-ups"

and "show-ups." However, the victim was unable to

identify any of the persons shown to her as being her as-

sailant. Finally, on August 17, 1965, petitioner was

arrested as a suspect in the rape of another woman.

While petitioner was being detained in connection with

that case the police asked Mrs. Beamer to come to the

police station to "look at a suspect." The identification

process employed at this point was called a show-up. In

this type of identification procedure, the suspect appears

before the victim alone rather than in the company of

others. The victim therefore does not have to attempt

to choose one person from a group of persons presented

to him, as in a line-up, but rather the victim knows that

A. 34

Order, 4/17/70

the person presented to him for identification is one whom

the police suspect of having committed the crime. At the

instant show-up Mrs. Beamer identified petitioner as being

her assailant, As to what transpired at the show-up,

there is some conflict between the testimony given by

Mrs. Beamer at the trial and that given by her at the evi-

dentiary hearing held in this court on October 30, 1969.

In testimony given at the trial, Mrs. Beamer testified

that on viewing the petitioner the "first thing" that made

her think he might be her assailant was his voice. How-

ever, at the October hearing, Mrs. Beamer testified that

she identified petitioner positively prior to having him

speak the words spoken by Mrs. Beamer's attacker more

than seven months earlier during the crime —"You tell

her to shut up or I'll kill you both." There is

(fol. 4] also conflict between the testimony given by

police officers at the trial and that given by

them at the October hearing as to whether or not identifi-

cation of petitioner was made before or after he was asked

to speak these words.

At any rate, petitioner was identified at this show-up

as being Mrs. Beamer's attacker, and the subsequent in-

dictment and conviction of petitioner was based almost

exclusively upon this station house identification.!

Turning now to a consideration of the legal consequences

attaching to the identification process described above, the

basic issue to be dealt with may be defined as follows:

was petitioner subjected to a type of identification procedure,

namely the show-up confrontation, which was so unneces -

sarily suggestive and conducive to irreparably mistaken

1 ‘There is considerable doubt on reading the trial record as to whether or

not Mrs, Beamer made a positive in-court identification of petitioner at

the time of the trial. .

A. 35

Order, 4/17/70

identification as to have the effect of denying due process

of law to the petitioner? There are relatively few cases

dealing with this issue and the validity of the show-up

identification process in the light of due process considera -

tions. However, the teachings of this small body of law

point the way for decision of the issue now before the Court.

It is well settled that in the absence of exceptional cir-

cumstances any identification procedure, whether in the

nature of a show-up or a line-up, employed without giving

the suspect the right to have counsel present constitutes a

denial of due process. United States v. Wade, 388 U.S.

218 (1967); and, Gilbert v. California, 388

[fol. 5] U.S. 263 (1967). Though petitioner in the in-

stant case was not provided with the advice of

counsel, the rule-of Gilbert and Wade has no application

here since that rule was not given retroactive effect.

Stovall v. Denno, 388 U.S. 293 (1967). The Stovall de-

cision makes it clear, however, that aside from the right

to counsel, a suspect also has the right not to be subjected

to police identification procedures which are so unfair,

given the "totality of the surrounding circumstances, "

as to present a significant possibility of irreparably mis-

taken identification. Where such faulty procedures are

employed, theypresent a "recognized ground for attack

upon a conviction. ..." See, Stovall v. Denno, supra,

at 302; Simmons v. United States, 390U.S. 377 at 383

(1967); and Palmer v. Peyton, 359 F.2d 199 (4th Cir.,

1966). In light of these general principles, Mr. Justice

Douglas succinctly stated the issue involved here in his

dissenting opinion in the earlier consideration of petition -

er's case by the Supreme Court of the United States. He

pointed out that whether or not the procedure by which

Mrs. Beamer identified petitioner denied him due process

of law "must be evaluated in light of the totality of the

A. 36

Order, 4/17/70

surrounding circumstances" with the view of determining

if the procedure in petitioner's case "was so unduly preju-

dicial as fatally to taint his conviction." Biggers v. Ten-

nessee, 390U.S. 404 at 406 (1967).

The show-up identification process is, as the expert

witness for petitioner testified, a far less re-

(fol. 6] liable method of identification than the line-up

method. The fact that this is so has been given

judicial recognition. In Wise v. United States, 383 F.2d

206 (D.C. Cir., 1967); and, Wright v. United States,

404 F.2d 1256 (D.C. Cir., 1968), it was stated that "the

presentation of only one suspect in the custody of the ce

raises problems of suggestibility that brings us to the

threshold of an issue of fairness." See also, Biggers v.

Tennessee, supra at 407-408; and, Stovall v. Denno,

supra at 302. See also, Wall, Eye Witness Identification

in Criminal Cases 26-40, and Paul, "Identification of

Accused Persons," 12 Austl. L. J. 42, 44 (1938) (as cited

by Mr. Justice Brennan in the majority opinion in Stovall

v. Denno, supra.)

The problem intrinsic in the show-up identification pro-

cess is perhaps best stated as follows:

Whatever may be said of lineups, showing a suspect

singly to a victim is pregnant with prejudice. The

message is clear: the police suspect this man. That

carries a powerfully suggestive thought. Even in a

lineup the ability to identify the criminal is severely

limited by normal human fallibilities of memory and

perception. When the subject is shown singly, havoc

is more likely to be played with the best-intended

recollections. Biggers v. Tennessee, supra at 407

(Justice Douglas’ dissent. )

A. 37

Order, 4/17/70

However, the use of the show-up process is not per se

unconstitutional. Where special circumstances such as

an urgent need for rapid identification are present, show-

ups are allowable. For example, in Stovall, the Court

found that the show-up was permissible and

{fol. 7] within the bounds of due process where the pro-

cedure was conducted in the hospital room of

the victim who was at the point of death following a stabbing

attack. Clearly, in that case, there was no time to con-

duct a line-up and the urgency of the situation demanded

that if any eye-witmess identification was to be obtained

at all it had to be obtained by the show-up method. The

“totality of surrounding circumstances" was such that the

show-up was found to be permissible.

Aside from the urgent sort of deathbed situation which

occurred in the Stovall case, thorough analysis of case

law in the area reveals certain other sets of circumstances

in which a show-up has been held permissible. For ex-

ample, courts have upheld the constitutionality of the show-

up where the witness had an unusually good and sustained

opportunity to view the participants in the commission of

the crime. The theory of the courts is that this particular

circumstance makes it unlikely that a show-up would lead

to misidentification. See, United States ex rel. Gracia

v. Follette, 417 F.2d 709 (2d Cir., 1969); Macklin v.

United States, 409 F.2d 174 (D.C. Cir., 1969); United

States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d

Cir., 1969); Cline v. United States, 395 F.2d 138 (8th

Cir., 1968); and Hanks v. United States, 388 F.2d 171

(10th Cir., 1968). Show-ups have also been given court

approval where the confrontation between the witness and

the accused occurs "so near the time when the alleged

crime was committed" that the chance of misidentification

A. 38

Order, 4/17/70

(fol. 8] is minimal. The time period within which the

show-up may be permissible ranges from a few

hours to a few weeks. See, United States ex rel. Williams

v. LaValle, 415 F.2d 643 (2d Cir., 1969); Stewart v.

United States, 418 F.2d 1110 (D.C. Cir., 1969); United

States ex rel. Anderson v. Mancusi, 413 F.2d 1012 (2d

Cir., 1969) (suspect identified within hours of crime);

Clark v. United States, 408 F.2d 1230 (D.C .Cir., 1968)

(suspect identified within a few weeks and a “very positive

spontaneous identification" by the witness); and, Bates

v. United States, 405 F.2d 1104 (D.C. Cir., 1968). Also,

where the show-up was conducted following other independ-

ent identification by the witness (i.e., photographic identi -

fication), or a particularly good description of the partici-

pant in the criminal act, courts have tended to approve the

procedure. See, United States v. Thompson, 417 F.2d

197 (4th Cir., 1969).

While the show-up has been approved within the con-

text of the four situations déscribed above, the courts

have zealously guarded the rights of the accused where

the show-up procedure was conducted in a manner so sug-

gestive and conducive to irreparably mistaken identifica-

tion as to amount to a denial of due process. For ex-

ample, a show-up was expressly disapproved where a

witness was shown a lone suspect and asked, "Is this the

man?" In this situation, the court stated that the words

and actions of the police in contriving the show-up clearly

indicated to the witness that the police thought this suspect

had committed the crime, thereby contributing

(fol. 9] toa “mutual reinforcement of opinion" likely

to lead to mistaken identification. See, Clark

v. United States, 294 F. Supp. 44 (D.D.C., 1968). In

another case, a Circuit Court of Appeals upheld the hold-

ing of a federal district judge that a cell block confrontation

A. 39

Order, 4/17/70

between a witness and a suspect was unnecessarily sugges -

tive and therefore the identification obtained from the show-

up could not be introduced at the trial. That show-up was

objectionable on due process grounds because the suspect

had been presented alone to the witness in a screened-off

portion of the jail and the witness knew beforehand that

the suspect was considered by police to be the culprit.

See, Clemons v. United States, 408 F.2d 1230 (D.C. Cir.,

1968); and see also, United States v. Gregg, 414 F.2d

943 (7th Cir., 1969).

In yet another case, a show-up identification was dis -

allowed because the identifying witness did not have the

opportunity to obtain a good view of the pargicipants in

the crime. See, United States v. Gilmore, 398 F.2d

679 (7th Cir., 1968). The hesitancy of a wimess to make

a positive identification in a show-up has also been said

to indicate the type of misidentification danger which would

contravene constitutional requirements of due process.

These cases make it quite clear that while a show-up

is constitutionally acceptable in certain situations, courts

will look carefully at the factual situation surrounding the

show-up to determine whether or not the procedure was

conducted in such a manner as to violate due

[fol. 10] process requirements. Courts also have looked

to the surrounding circumstances to deterntine

whether or not a line-up should have been conducted rather

than the show-up with its attendant dangers of misidentifi-

cation. For example, where police custody is involved,

it has been held that the need for a formal line-up may

not be circumvented by keeping a suspect away from the

stationhouse until an informal show-up confrontation can

be contrived. See, United States v. Venere, 416 F.2d

144 (Sth Cir., 1969).

A. 40

Order, 4/17/70

The Stovall case and the cases discussed immediately

above make it clear that while the practice of showing sus -

pects singly to witnesses for identification is widely con-

demned, each case of this type must be judged on its own

facts and that convictions based on show-up identifications

will be overturmed only if the identification procedure was

so impermissibly suggestive as to give rise to a very sub- .

stantial likelihood of irreparable misidentification. See,

Simmons v. United States, 390 U.S. 377 at 384 (1967).

Though the show-up is clearly a less reliable method of

identification than the line-up, it is necessary in some

circumstances and this Court does not subscribe to a rule

that would prohibit its-use as a matter of constitutional

requirement. However, the “totality of surrounding cir -

cumstances" must be examined closely in this case to

determine whether special circumstances or exigencies

such as those described above existed which would war-

rant the use of the show-up instead of the more reliable

line-up procedure,

(fol. 11] On this basis the Court must conclude that

the circumstances here present are not such as

to warrant the show-up procedure and, consequently, that

its use at petitioner's trial denied him due process of law.

Respondent, arguing in support of the use of the show-up

procedure, relies chiefly on the contention that a show-up

was actually fairer to petitioner than a line-up would have

been since no prisoners were readily available in either

the Metro Jail or the juvenile home whose general descrip-

tion matched that of petitioner. To have conducted a line-

up under these circumstances, contends respondent, would

have had a greater tendency to cause a misidentification

because in a dissimilar group the physical characteristics

of petitioner, whose general description matched that of

A, 41

Order, 4/17/70

Mrs. Beamer's assailant, would have been unduly ac-

centuated. This argument has perhaps some value but

it is at best debatable. According to expert testimony

produced by petitioner's attorneys, a line-up where no

one had physical characteristics similar to petitioner

would have been less preferable than one where members

of the group all had certain similar characteristics but,

in any event, would be preferable to a show-up. This

conclusion is derived from the belief that any line-up

would be a better test of the victim's memory since it

would demand the exercise of some selectivity in identi-

fication. Furthermore, there is no indication that a

truly concerted effort was made to produce suitable sub-

jects for a line-up. Aside from a phone call

[fol. 12] to the juvenile home and a screening of Metro

Jail inmates no other efforts were made. There

are several other prison facilities in the area and there

is no evidence that any effort was made to screen them

for subjects. The Court sees no reason why this could

not have been done in order to maximize the fairness of

the identification process. Here, there was no evidence

of any deathbed urgency as in Stoval which would have

precluded the police from delaying the identification pro-

cedure until a suitable line-up could have been arranged.

The crime was seven months old, the victim was fully

recovered and well, and there are no other indications

that the ends of justice demanded an immediate show-up

rather than a much more reliable line-up. Furthermore,

none of the other circumstances which the above discussed

cases indicate may justify a show-up existed in the instant

case. The evidence clearly shows that the complaining

witness did not get an opportunity to obtain a good view

A, 42

Order, 4/17/770

of the suspect during the commission of the crime” Also,

the show-up confrontation was not conducted near the time

of the alleged crime, but, rather, some seven months after

its commission.* Finally the witness in the instant case

was unable to give either an independent photographic

identification of the suspect or a good physical

(fol. 13] description of her assailant.* The nature of

the show-up as conducted in this case —with

the great lapse of time between the crime and the identifi-

cation, the hesitancy of the witness in identifying the peti-

tioner,’ the circumstances of the stationhouse confronta -

tion coupled with Mrs. Beamer's knowledge that petitioner

was thought by police to be her assailant —tended to maxi-

mize the possibility of misidentification of the petitioner.

True, it may have been more convenient for the police to

have a show-up. However, in matters of constitutional

due process where police convenience is balanced against

the need to extend basic fairness to the suspect in a crimi-

nal case, the latter value should always outweigh the form-

er. In this case it appears to the Court that a line-up,

which both sides admit is generally more reliable than a

show-up, could have been arranged. The fact that this

was not done tended needlessly to decrease the fairness

of the identification process to which petitioner was sub-

jected.

2 The only other eye-witness, Mrs. Beamer's daughter could not identify

Biggers. And see, the case of United States ex rel. Garcia v. Follette,

supra and accompanying text and cases.

3 See the case of United States ex rel. Williams v. LaVallee, supra, and

accompanying text and cases.

4 See the case of United States v. Thompson, supra, and accompanying

text and cases.

5 See United States v. Gilmore, supra, and accompanying text.

A. 43

Order, 4/17/70

Due process of law and basic fairness demand that the

most reliable method of identification possible be used in

acriminal case. See, Simmons v. United

[fol. 14] States, supra, at 383-384. The conduct of the

show-up in this case created an atmosphere

which was so suggestive as to enhance the chance of mis-

identification and hence constituted a violation of due pro-

cess.

Clearly, this identification did not amount to a harmless

error, since the victim's identification of petitioner was

virtually the only evidence upon which the conviction was

founded. See, Chapman v. California, 386 U.S. 18 (1966).

In view of this conclusion, the Court finds it unneces -

sary to reach the issue of whether voice identification as

used here amounted in itself to a violation of due process.

It may be that the validity of such identification should

normally be left to the jury. Since the voice identifica -

tion took place during the show-up and the show-up pro-

cedure itself is unconstitutional as employed in this case,

there is no reason to reach the specific issue raised con-

cerning voice identification.

Accordingly, judgment will be entered granting the ap-

plication of Archie Nathaniel Biggers for a writ of habeas

corpus, voiding the conviction obtained in the state coyrt,

and discharging the petitioner from custody after the state

has had a reasonable time to retry him upon the same

charge, any such new trial to be “unaffected by Mrs.

Beamer's station -house identification and the testimony

of the police officers who were present when it took place."

Biggers v. Tennessee, supra at 409.

/s/ Wm. E. Miller

UNITED STATES DISTRICT JUDGE

A. 44

(fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

MOTION TO RECONSIDER

(Filed April 24, 1970)

Comes the Respondent, Lake F. Russell, and moves

the Court to reconsider its Order of April 17, 1970, in

the above captioned matter insofar as such Order holds

that the affirmance of Petitioner's conviction by an equally

divided United States Supreme Court was not an adjudica-

tion on the merits of his claims so as to prevent him from

bringing the instant habeas corpus action for the reasons

Stated in the accompanying memorandum brief.

/s/ James C. Dale, III

JAMES C. DALE, III

Special Counsel

State of Tennessee

706 Nashville Bank ahd Trust Building

Nashville, Teunessee 37201

(Certificate of Service Omitted]

A, 45

(fol. 1] 1) The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

ORDER

(Received for Entry 9:00 A.M., May 4, 1970)

Respondent in the instant case has filed with the Court

a Motion to Reconsider. In so doing, respondent alleges

that the Court erred in accepting jurisdiction over the in-

stant habeas corpus matter and in deciding on the merits

of petitioner's claims. Respondent's allegation of error

rests on the proposition that the affirmation of petitioner's

conviction by reason of the equal division of opinion of the

United States Supreme Court when it heard petitioner's

case in Biggers v. Tennessee, 390 U.S. 404 (1968), was

an adjudication that “is as conclusive and binding upon the

parties as if rendered upon the concurrence of all partici-

pating judges upon every question involved in the case."

Respondent further contends that since the issues raised

in this case have been thus "adjudicated" by the Supreme

Court, the doctrine of res judicata should apply and the

instant petition should have been dismissed by the Court.

The issue raised by respondent's present

{fol. 2] ~ motion may be stated thusly: In a habeas corpus

proceeding, does an affirmation by reason of an

equal division of opinion among the Justices of the Supreme

Court amount to an adjudication between the parties which,

even though no decision was rendered as to the merits of

petitioner's claim, must be considered final in that the

doctrine of res judicata would bar petitioner from raising

the same constitutional claims in a subsequent habeas

corpus petition?

After a thorough consideration of the case law relevant

to the issue, the Court remains of the opinion expressed

A. 46

Order, 5/4/70

in its Order of May 12, 1969, that the merits of petitioner's

constitutional claims were left undecided by the equally

divided Supreme Court and that the doctrine of res judicata

does not operate in such a manner as to bar petitioner

from raising those constitutional claims again as presented

in his habeas corpus petition. It is generally true that

when the Supreme Court is equally divided as to the out-

come of a case, the judgment is automatically affirmed

without opinion. Etting v. Bank of the United States,

24 U.S. 59 (1826). Furthermore, as respondent points

out, there is a general rule to the effect that "an affirm-

ance by an equally divided court is, as between the parties,

a conclusive determination and adjudication of the matter

adjudged ...." Hertz v. Woodman, 218U.S. 205 (1910);

and see United States v. Pink, 315 U.S. 203 (1942);

Durant v. Essex Co., 74 U.S. 107 (1868); and, Kaku

Nagana v. Brownwell, 212 F.2d 262 (7th Cir. 1954).

However, the Court is of the view that the general rule

espoused in the above cited cases cannot be

(fol. 3] taken to stand for the proposition that a technical

affirmation which results from the fortutious

circumstance of an equally divided court and which makes

no pronouncement, either pro or con, on the merits of

the constitutional claims of a habeas corpus petitioner,

must be protected by the doctrine of res judicata. The

cases cited by respondent in support of his argument are

unconvincing since they deal wholly with litigation concern-

ing property rights! rather than the right of a criminal

1 In cases involving contract rights, various property rights, tax liability

questions, etc., there are overriding economic and administrative interests

in seeing that finality is achieved in litigation so that “business can pro-

ceed as normal." The cases cited by respondent make this very clear.

In Hertz v. Woodman, 218 U.S. 205 (1910) the Court was concerned with

deciding who was entitled to the possession and enjoyment of a distributive

(Continued on following page)

A. 47

Order, 5/4/70

defendant to due process of law where there is a possibility

that his liberty or even his life may be forfeit. As the

leading cases on the effect of affirmation due to an evenly

divided court make clear, the principles of law which are

argued in such a case are not decided but, rather, are left

unsettled. In such a circumstance, the Court affirms out

of necessity since, in its evenly divided state, it cannot

overturn the lower court ruling. Such an affirmation is

a technicality only, growing out of the policy of judicial

administration that there must at some point

[fol. 4] bean end to litigation. See, Etting v. Bank

of the United States, 24 U.S. 59 (1826).

It is inconceivable that a technical rule such as this,

born to serve the needs of judicial administration, could

be employed to deny a criminal defendant the right to ob-

tain a full judicial determination of his constitutional claims

in the federal courts. Certainly, it would amount to a

travesty on justice if such a result were permitted. In

the circumstances surrounding this case that travesty

would be compounded by the fact that the even split of

opinion occurred because of the necessity of Mr. Justice

Marshall having to recuse himself apparently due to past

professional association with petitioner's attorneys. The

liberty of petitioner and others like him should not be left

to the mercy of mere fortuity.

(Continued from preceding page)

share of an estate for tax purposes; in Durrant v. Essex Co., 740 U.S. 107

(1868) the question involved rights in certain realty; in United States v.

Pink, 315 U.S. 203 (1941) the Court was concerned with the disposition

of surplus funds of a Russian insurance company; and in Kaku Nagana v.

Brownwell, 212 F.2d 262 (7th Cir. 1954) suit was brought to recover stock

vested by an alien property custodian pursuant to the Trading with the

Enemy Act.

A. 48

Order, 5/4/70

Fortunately, it has been recognized from early common

law days to the present that such technicalities cannot be

used to thwart the right of the criminal defendant to have

the merits of his constitutional claim fully adjudicated.

As the United States Supreme Court has recently stated:

“Conventional notions of finality of litigation have no place

where life or liberty is at stake and infringement of con-

stitutional rights is alleged." Sanders.v. United States,

373 U.S. 1 at 8 (1962).2 Indeed, it has long

(fol. 5] been recognized as a “familiar principle that

res judicata is inapplicable in habeas proceed-

ings." Fay v. Noia, 372 U.S. 391 at 423 (1962). If

government is always to be accountable to the judiciary

for a man's imprisonment, then access to the courts by

way of habeas corpus must not be thus impeded. "The

inapplicability of res judicata to habeas, then, as inherent

in the very role and function of the writ." Sanders v.

United States, supra at 8; and see e.g. Fay v. Noia,

supra at 402; King v. Suddis, 1 East 306, 102 Eng. Rep.

119 (K.B. 1801); and, Cox v. Hakes, 15 A.C. 506 (H.L.,

1890).

The Court is not persuaded by respondeht's proposed

interpretation of 28 U.S.C.A. §2244(c) dealing with the

finality of determinations by federal courts in habeas

corpus proceedings. As Sanders makes clear, §2244(c)

was “not intended to change the law as judically evolved."

Furthermore, "if construed to derogate from the tradi-

tional liberality of the writ of habeas corpus, ... §2244

might raise serious constitutional questions."° Sanders

S See Note 1 supra.

3 See U. S. Const. Art. 1§9, cl. 2 which provides: "The Privilege of

the Writ of Habeas Corpus shall not be suspended, unless when in Cases of

Rebellion or Invasion the Public Safety may require it. "

A. 49

Order, 5/4/70

v. United States, supra at 11-12 and see, Fay v. Noia,

supra at 406.

It should be made clear that while ves judicata is in-

applicable in habeas corpus proceedings, it is proper for

a judge to deny subsequent applications for habeas corpus.

relief on the ground that the first denial had followed a

full hearing on the merits. However, it should also be

made clear that a judge is permitted to dismiss on such

grounds and not required to order a dismissal

[fol. 6] by reason of any considerations of res judicata.

See, Salinger v. Loisel, 265 U.S. 224 (1960);

and, Sanders v. United States, supra.

The Sanders case is instructive as to the types of situa-

tions in which a judge may correctly elect to dismiss a

habeas corpus petition on the ground that a previous hear-

ing has disposed of the petitioner's claims on their merits.

Sanders states that:

“Controlling weight may be given to denial of a prior

application for federal habeas corpus of §2255 relief

only if (1) the same ground presented in the subsequent

application was determined adversely to the applicant

on the prior application, (2) the prior determination

was on the merits, and (3) the ends of justice would

not be served by reaching the merits of the subsequent

application." Sanders, supra at 15.

and further that:

"No matter how many prior applications for federal

collateral relief a prisoner has made, [controlling

weight may not be given to denial of prior application]

if a different ground is presented by the new applica-

tion [or] if the same ground was earlier presented

but not adjudicated on the merits.'' [Emphasis added].

Sanders, supra at 17.

A. 50

Order, 5/4/70

Looking to the facts here presented in light of the

Sanders rule and the foregoing reasoning, the Court con-

cludes that the prior hearing of petitioner's appeal by the

United States Supreme Court did not determine the merits

of petitioner's constitutional claim. Further, as the

memorandum opinion issued by the Court on April 17,

1970, makes clear, the ends of justice have

(fol. 7] been served by this Court in hearing petitioner's

case and reaching the merits of the constitutional

claims presented. The fact that petitioner's conviction

was technically affirmed by reason of the United States

Supreme Court's even division of opinion is of no conse-

quence here since the merits of the claim were not ad-

judicated. Even if they had been adjudicated, Sanders

shows that those claims would not have been automatically

barred from consideration by this Court in a habeas corpus

proceeding.

It occurs to the Court that there is yet another logical

reason to support its decision to consider petitioner's

claim. The United States Supreme Court hearing in the

Biggers case followed the acceptance by the Court of a

writ of certiorari to review the affirmation of petitioner's

conviction by the Tennessee Supreme Court. The fortutous

circumstance of an equally divided United States Supreme

Court simply had the effect of leaving undisturbed without

opinion the ruling of the State Supreme Court. Therefore,

the instant habeas corpus petition is, in effect, an initial

federal habeas corpus petition alleging error in a state

criminal conviction. This being the case, the Supreme

Court of the United States has recently established the >

proposition that notions of finality, such as res judicata,

forfeiture, or waiver, cannot be applied so as to preclude

the intial consideration of federal constitutional claims in

a federal court. Fay v. Noia, supra at 428.

A. 5l

Order, 5/4/70

[fol. 8] Finally, it should be readily apparent that

the situation presented in the instant case is

highly analagous to the situation where a criminal defend-

ant, after appealing his case to the highest state court,

has had his conviction affirmed by that court and has sub-

sequently sought relief by way of habeas corpus petition

in a federal district court. The analogy may be drawn

as follows. Due to the equal division of opinion among

the Justices, the United States Supreme Court did not de-

cide this case on its merits. Therefore, the Tennessee

State Supreme Court is the highest court to have expressed

an opinion as to the merits of petitioner's claim. That

being the case, the Court is of the view that petitioner

Biggers stands in essentially the same position as a crimi-

nal defendant who, having exhausted his state court remedies

pursuant to 28 U.S.C.A. 82254, makes application for

habeas corpus relief in federal district court. In such a

situation, and in the instant situation, this Court has juris-

diction to fully adjudicate petitioner's constitutional claims

since it is an unchallengable principle of law that in habeas

corpus cases the ruling of the highest court of a state on

a constitutional claim never bars consideration of the same

constitutional issue by a federal district court. Principles

of res judicata simply have no application in this situation.

Accordingly, for the foregoing reasons the Court con-

cludes that the technical affirmation of petitioner

{fol. 9] Biggers' state convittion by reason of the equally

divided court does not foreclose this Court from

disposing of the petitioner's constitutional claim on its

merits.. Therefore, respondent's Motion to Rehear should

be, and the same is hereby, dismissed.

/s/ Wm. E. Miller

UNITED STATES DISTRICT JUDGE

A. 52

(fol. 1] In The United States District Court

Middle District of Tennessee, Nashville Division

[Title omitted in printing]

NOTICE OF APPEAL

(Filed May 11, 1970)

Notice is hereby given that William S. Neil, Warden,

Respondent above named, hereby appeals to the United

States Court of Appeals for the Sixth Circuit from the

order sustaining the petition for the writ of habeas corpus,

entered in this action on the 17th day of April, 1970.

May 7, 1970.

/s/ James C. Dale, Ill °

James C. Dale, II

Special Counsel .

State of Tennessee

706 Nashville Bank and Trust Building

Nashville, Tennessee 37201

A. 53

TRANSCRIPT OF PROCEEDINGS

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

'

ARCHIE NATHANIEL BIGGERS,

Petitioner

Vs.

LAKE F. RUSSELL, Warden,

Tennessee State Penitentiary,

Respondent 7

\

FILED

JUN 15 1970

BRANDON LEWIS, Clerk

By L. M, Edwards, DC

CIVIL ACTION

No. 5120

BEFORE: The Honorable William E. Miller, Judge

TRANSCRIPT OF PROCEEDINGS

Nashville, Tennessee

November 4, 1969

[2]

APPEARANCES:

FOR THE PETITIONER:

Mr. Michael Meltsner

Suite 2030 :

10 Columbus Circle

New York, New York, 10019

FOR THE RESPONDENT:

Mr. James C. Dale, III

Bailey, Ewing and Dale

Nashville Bank and Trust Building

Nashville, Tennessee

[3]

» INDEX

WITNESS Direct Cross Redirect Recross

Opening Statements:

Mr. Meltsner >

Mr. Dale 13

William A. McDaniel, Jr. 17 32339

Dr. Irwin Pollack 47 62 83

Flora Marie Hammonds 85 87

Petitioner rests 88

Margaret Frances Beamer 88 97

Floyd Bailey 101 104

Respondent rests 104

PETITIONER'S EXHIBITS

%

NUMBER Description Ident. Filed

1 Affidavits of Petitioner, Mrs. Flora

Hammonds, Mr. Avon M. Williams,

Jr., and Transcript of Record,

Supreme Court of the United

States 1] ll

2 Curriculum Vita, Irwin Pollack,

September, 1968

A. 55

[4]

TRANSCRIPT OF PROCEEDINGS

THE COURT: Call the case, Mr. Clerk,

THE CLERK: Case No. 5120, Archie Nathaniel Biggers

v. Lake F. Russell, Warden.

MR. DALE: If the Court please, I think Mr. Meltsner

has been introduced to the Court informally, but I thought

I would take this opportunity to request his admission to

practice before this Court. He is a member of the Bar

of the State of New York, of the Supreme Court of the United

States, of the Fourth, Fifth and Eighth Circuit Courts of

Appeals, and I request his admission to practice before

.-this Court,

THE COURT: All right, sir, glad to have you to parti-

cipate in the case,

MR. MELTSNER: Thank you, sir.

THE COURT: We're glad to have you to participate in

the case, and you will begin by giving me a short history

of the case and a statement of the issues involved.

MR. DALE: Mr. Meltsner, do you think we better

have our witnesses step outside?

THE COURT: How many witnesses are there?

MR, DALE: We have one in the courtroom, if Your

Honor please.

THE COURT: Well, let the witnesses be excused

[5]

to the witness room, retire to the witness room,

(Whereupon, the witnesses were excused from the

courtroom under the rule of exclusion. )

MR, MELTSNER: Briefly, Your Honor, this case

was tried in the Criminal Court of Davidson County, in

A, 56

Proceedings

1965. The evidence at that time showed that there had

been a rape occurring in Nashville in January, 1965. The

victim had been a Mrs. Margaret Beamer,

THE COURT: What's the name?

MR. MELTSNER: Beamer, B-e-a-m-e-r.

THE COURT: All right.

~.MR. MELTSNER: Some seven months subsequent to

that rape, a police officer at the Hubbard Hospital saw a

young man receiving medical attention for a cut on his

arm, and the young man who is the Petitioner here, Archie

Nathaniel Biggers, was with his mother at the hospital at

that time. The date is August 16, 1965,

The officer then asked the boy's mother if he could take

him back to the place on Scovel Street in Nashville where

the young man had said that he had fallen while chased by

dogs and been cut,

The young man was taken away \ by the police and sub-

sequently lodged in the Juvenile Deténtion facilities here

in Nashville for the rest of that night and sometime during

the following day, the 17th of August, he was taken across

[6]

town to the Metropolitan Police headquarters, and there

was walked into a room in the homicide division where

Mrs, Beamer was seated, There were also four or five

police officers present. One of the police officers told

Biggers to say, ‘Shut up or I'll kill you", words which

had been spoken by the rapist seven months earlier. He

spoke those words, and Mrs, Beamer identified him as

the rapist.

At trial, her identification of him was the only evidence

of Biggers' guilt. The only other state's witnesses, aside

from a doctor who testified that there had indeed been a

rape, were four or five of the police officers who had been

—

A. 57

Petitioner's Opening Statement

present, and they merely corroborated that Mrs. Beamer

had in fact identified Biggers at police headquarters.

An appeal was taken from the conviction to the Supreme

Court of Tennessee, and in that appeal, the character and

circumstances of the identification were challenged on

federal constitutional grounds. The Supreme Court of

Tennessee affirmed, and the petition for writ of certiorari

was granted by the Supreme Court of the United States.

As Your Honor knows, that Court affirmed by an equal di-

vision of the eight sitting Justices, Mr. Justice Douglas

writing a dissenting opinion.

Shortly thereafter, this petition was filed in this Court,

but I do think it appropriate at this point to mention that

subsequent to the affirmance by an equally -divided

[7]

Court in Petitioner's case, the Supreme Court granted

review in a case raising very similar issues, that being

Foster v. California, and decided by a vote of five to

four some of the circumstances which make an identifi-

cation of this sort violative of the due process clause of

the Fourteenth Amendment.

The claims presented to Your Honor by the petition

and the answer are primarily whether the identification

herein, under the totality of the circumstances doctrine,

did in fact violate the Fourteenth Amendment; whethér,

and here I want to draw a rather fine distinction, but one

I think is explicitly merited by the Supreme Court decision

in Wade v. United States, whether the state use of what

Biggers was required to say for purposes of identifica -

tion at trial violated the Fifth Amendment as incorporated

in the Fourteenth, in other words, whether the state is

able to put on a witness who can say, as Mrs, Beamer

did, he said, "Shut up or I'll kill you, " at the pre-trial

A. 58

Petitioner's Opening Statement

identification proceeding when that testimony is compelled

at the pre-trial identification proceeding. *

THE COURT: Now at the actual trial elf, she did

testify?

MR. MELTSNER: Mrs. Beamer?

THE COURT: Yes. :

MR. MELTSNER: Yes, she did testify.

THE COURT: And did she identify the defendant at

that time, or did she—was her testimony substantially

[8]

the same as her statement at the pre-trial identification

here?

MR, MELTSNER: As I read her testimony, Your Honor,

it's quite plain that what she did was describe lier pre-

trial identification. At no time during the trial did she

point him out in the courtroom, At no time did she say,

it's that man over there, it's the second man from the

right at the table, nothing of that sort occurred, and I be-

lieve Mr. Justice Douglas, in his opinion, drew the same

conclusion from the record.

THE COURT: She identified him, in other words,

from— on the basis of what he had said at the lineup?

MR. MELTSNER: On the basis of what he had said

and also his physical appearance at the showup, at it's —

THE COURT: Showup?

MR. MELTSNER: As it's generally called,

THE COURT: Yes. '

MR. MELTSNER: She told the jury what had happened

in effect. She never identified him in the courtroom.

THE COURT: Now what is the distinction between a

showup and a lineup?

MR. MELTSNER: Well, the literature generally draws

the distinction that when a suspect! is presented individually

A. 59

Petitioner's Opening Statement

for identification, that is called showup; when he is pre-

sented with additional persons so that there can be some

comparison of sizes, shapes, voice and the like, that is

[9]

called a linemp.

There are’two other claims which are before the Court

briefed in our trial memorandum which we filed sometime

ago. One is that the identification of the Petitioner was

the fruit of an unlawful arrest, and the last is that some

prejudicial remarks made by the prosecuting attorney was

reversible error. The primary claims relate to the consti-

tutionality of these identification procedures in the circum -

stance of this case.

Now on the basis of the petition and the answer, I think

it's fair to state that there are no substantial differences

between the parties as to the facts. Rather the parties.

differ as to the constitutional application of generally-

agreed upon facts.

Thus today the Petitioner seeks to the extent possible

{ to amplify and explore the meaning of the facts in this

case as was described in this Court's order of July 29,

1969, where the Court states a desire to receive testi-

mony on the following matters, and I quote:

"The nature of the ‘show-up' identification process

as opposed to the ‘line-up’ identification process, and

why the former process was employed in the instant

case; and, the general reliability of voice identifica -

tion procedures, and their relative importance com-

pared with other methods of identification in linking

[10]

the petitioner to the offense alleged in the instant

action, " :

—

A. 60

Petitioner's Opening Statement

We have two witnesses who we would like to present

with respect to these questions, but first I would like to

move the admission of the transcript of record of the state

court proceedings as reproduced before the Supreme Court

of the United States and the affidavits of Petitioner, his

mother, Mrs, Hammonds, and Attorney Williams, which

are on file and which were authorized to be filed by this

Court's order of July 1, 1968. I think that will shorten

the—

THE COURT: Let's see, July Ist?

MR. MELTSNER: Yes, Your Honor entered an order

at that time authorizing that affidavits be filed on behalf

of the parties.

THE COURT: All right.

MR. MELTSNER: And in response to that, I believe

we filed those three affidavits and the transcript of record.

THE COURT: All right. There's no objection to that?

MR, DALE: Not at all, if Your Honor please. I think

the transcript, although I'm not certain that it is the one

prepared for the Supreme Court, is already an exhibit in

the answer of the Respondent in this case,

THE COURT: Well, as long as it is a full and

[11]

complete transcript of the state trial procedures. You

have one that you've tendered to the Clerk?

MR. MELTSNER: Yes, I believe one was tendered

along with those affidavits, if I may look.

THE COURT: Well, let it be filed and file the affidavits.

MR, MELTSNER: May I have just a moment, Your

Honor?

THE COURT: Yes.

MR. MELTSNER: I had thought that we had forwarded

to the Clerk a copy of this which is the Supreme Court

A. 61

Petitioner's Opening Statement

transcript. Perhaps it's in the envelope.

THE COURT: Yes, might be in the envelope.

(MR. MELTSNER:] One of my witnesses has a copy of

this.

THE COURT: Yes.

MR, MELTSNER: And I would appreciate, when he

comes back, I would place that in evidence with the Clerk.

THE COURT: All right.

MR, MELTSNER: It's probable that what the Clerk

has is the same, but as I am certain that the contents of

this represents the entire record—

THE COURT: Well, let it be filed, the Supreme Court

record—

MR, MELTSNER: Thank you.

THE COURT: —of the trial and these affidavits,

[12]

Mr. Clerk.

THE CLERK: All right, sir. Exhibit 1 to the peti-

tioner.

(PETITIONER'S EXHIBIT NO, 1 was marked for

identification and filed. )

THE COURT: Now let's see exactly what posture

we're in. The Supreme Court of the United States divided

four to four, is that right? :

MR. MELTSNER: ‘That's correct.

THE COURT: And it was affirmed?

MR, MELTSNER: That's right, it was affirmed, but—

THE COURT: Now what are we examining here that

has not already been adjudicated by the Supreme Court?

MR, MELTSNER: Well, the law has recognized, I

believe, in one of Your Honor's previous orders in this

case, that is—I can't quote the latin particularly well,

A. 62

Petitioner's Opening Statement

but that is an affirmance by a split decision is of no prece-

dential value even in Petitioner's case.

THE COURT: All right.

MR, MELTSNER: Thus we are trying the constitutional

issues here much as in any other habeas corpus petition,

as if the Petitioner had never gone to the Supreme Court of

the United States.

THE COURT: Yes. In other words, the hearing

{13]

before the Supreme Court of the United States was from an

appellate review from the highest court of the state?

MR. MELTSNER: That' S correct, it was a review.

THE COURT: And this is an original application for

habeas corpus in this Court?

MR. MELTSNER: Correct.

THE COURT: All right. Well, let's see what Mr. Dale

has to say in response,

MR, DALE: If Your Honor please, I would like to take

issue with two of the statements relating to the facts of

this case, that Mr. Meltsner has presented,

In the first place, the State will show, and I think the

transcript amply indicates, that Mrs. Beamer did not

identify Biggers, the Petitioner in this case, until after —

or she did identify him prior to his speaking the words that

he was requested to speak,

Now he was in fact requested to speak the words to the

effect, "Shutup, or I will kill you", but it is our position,

and the transcript shows and the witnesses that the State

has here today will show to the Court that in fact she identi-

fied him before he was compelled to speak those words.

_ In addition—this relates to an inference to be drawn

from what is contained in the transcript —in no less than

two places within the transcript during Mrs. Beamer's

A- 63

Respondent's Opening Statement

testimony, she was asked first by the prosecutor, is there

any

[14]

doubt in your mind, she said, there is no doubt. She was

asked later on in the same testimony pertaining to her identi-

fication of Mr. Biggers, is there any doubt in your mind

today? She said, no, there is no doubt,

So these are factual differences. I think that by and

large Mr. Meltsner is accurate when he,.says that we agree

on the facts, but I will not stipulate any fact that he wishes

to—that we do not—we will prove our case today, if Your

Honor please.

Now I would also like to state that I think that the major

issue before us is the issue stated in Stovall v. Denno,

after the Supreme Court indicated that Wade and Gilbert

would not be retroactively applied. The Court there said

that the issue was, or their area of inquiry was whether

the confrontation conducted in this case was so unneces-

sarily suggestive and conducive to mistaken identification,

that he was denied due process of law.

I think that's the sole issue in the case. I think requir-

ing him to speak is, as in Schmerber, characteristic of

identification. He was not required to say, "Iam guilty".

He was required to speak or asked to speak simply so that

the tone or timber of his voice, if you will, if possible —

THE COURT: Were these the words that were alleged

to have been uttered at the time of the rape?

MR. DALE: That's my understanding, some words

[15]

similar to those, ~

THE COURT: And your proof will be directed to show-

ing why this kind of lineup was used?

A. 64

Respondent's Opening Statement

MR. DALE: We will get into that, yes, sir.

THE COURT: Showup instead of a lineup?

MR, DALE: Yes, sir, we will show, and I will state

to the Court what our proof will show, this man, the Pe-

titioner in this case, was sixteen years old. He was sub-

stantially larger, I believe, than he is now. I think he

must have lost some weight, but in any event, he was about

two hundred, two ten, over two hundred pounds, and over

six feet tall at that time.

He was sixteen years old. If you put him ina lineup

with juveniles, and of course he stands out because of his

size; if you put him in a lineup with adults, he stands out

because of his youth, so there was really no way a lineup

could be held, and our proof will show that, but again, I

don't think—I do believe that the only issue of constitu-

tional proportions is the question of whether or not the

confrontation was unduly suggestive.

THE COURT: Well, what was this—lI haven't recently

looked at the Supreme Court decision, but what was the

split between the Court caused by? What was the issue?

MR, DALE: There is no—you mean in the Biggers

case?

[16]

THE COURT: Yes.

MR, DALE: ~ There was no opinion.

THE COURT: No amplification or elaboration?

MR. DALE: The only elaboration was Mr. Justice

Douglas’ dissent,

THE COURT: And what was his dissent?

MR, DALE: His dissent, if Your Honor please, I read

the case yesterday, but as best I recall, he simply said

that lineups and showups, where not conducted superfairly,

to coin a phrase, are unduly suggestive and violate due

A, 65

Respondent's Opening Statement

process, and he would, of course, have reversed the con-

viction. I can't recall exactly what he said.

THE COURT: Well, something similar.

MR. DALE: But there was no opinion on the part of

the four who voted to affirm, so we have no way of knowing

what the actual split was.

Mr. Justice Marshall did not participate, which accounts

for the lack of an odd vote.

I guess that is the State's position.

THE COURT: All right. Well, let's——suppose you call

your first witness then. <P

MR. MELTSNER: Your Honor, I willdothat. I won-

der—I realize that you may wish to hear legal argument

_ later, but I did want to point out one thing.

THE COURT: All right.

[17]

MR. MELTSNER: And that is shown from page 205 of

the Supreme Court record in this case, not only did a num-

ber of witnesses testify concerning the reliance of the wit-

ness, Mrs. Beamer, on voice identification, but the Su-

preme Court of Tennessee made such a finding in its

opinion.

I just wanted to call that to your attention.

THE COURT: All right, you might pass that transcript

up here. . ;

MR. MELTSNER: This is my copy which is muchly

annotated. Forgive me for that, it's had a long trip.

MR. DALE: Mr. Meltsner, how is the pagination on

that? Does it conform?

MR. MELTSNER: In the beginning, it refers to both

the state trial record and a printed version. In other

words, the index describes two sets of pagination.

MR. DALE: I see.

A. 66

William A, McDaniel, Jr. - Direct

MR. MELTSNER: We would call Captain McDaniel

Ste...

WILLIAM A. McDANIEL, JR.,

a witness called to testify by and in behalf of the Respond -

ent, after having first been duly sworn, was examined and

testified as follows:

DIRECT EXAMINATION

BY MR. MELTSNER:

[18]

Where are you employed?

Metropolitan Police Department, Davidson County,

And what is your rank?

Captain, Criminal Investigation Division.

And what was your rank in 1965, captain?

I was a lieutenant,

How many years have you been a police officer?

In March, be twenty-three years, sir.

And were you familiar with the 1965 rape prosecu-

tion of the petitioner, Archie Nathaniel Biggers?

Iam, sir,

You testified at his trial?

Yes, sir.

Is that not correct?

Yes, sir,

And am I correct that you were the highest rank-

ing police officer directly involved in the investigation of

that case?

A During this time, I was lieutenant in charge of

personal crime, but I did have other higher superior offi-

cers over me to take the division.

Q In the detective division?

ODKrD FD PO PO

OPrOrO >

A. 67

William A. McDaniel, Jr. - Direct

A Fou; otf.

Q Did you have a number of officers working under

[19]

A Yes, sir.

Q_ And in the investigation of this case?

A Yes, sir.

Q Now want you to answer this from your experience

as a police officer, when a suspect is shown alone to a wit-

ness for identification, that is generally called a showup,

isn't it?

A Well, we don't use that term "showup". We-—if

we are going to have someone, we usually prefer a lineup.

Q You call it a lineup even if there is only one person?

A No, no. This particular case, we did not have a

lineup. This is not what I consider as a lineup.

Q__ What would you call the kind of identification pro-

cedure employed in this case? Is there some police term

for it?

A No.

Q___ The one-on-one identification?

A Not that I know of, sir, just under the circumstances,

it was the only means that I could see that we could use.

Q_ Well, let me just ask you this, have you ever heard

of the word "showup" before?

A I've heard of it, yes, sir.

Q And what did you understand it to mean?

[20]

A Well, just like I say, some use showup; I use

lineup.

Q You thought showup meant the same as lineup?

A That's my interpretation, yes, sir.

A. 68

William A, McDaniel, Jr. - Direct.

Q___But you do recognize there is something different

between an identification procedure where one person is

shown to a victim, and an identification where a number

of persons are shown to the victim?

A There's a difference, yes, sir.

Q Let me ask you this, were lineups, and by lineups

I mean a number of persons are shown to the victim, were

they in use in Nashville in 1965?

A Yes, sir.

Q_ They were?

A Yes, sir.

Q But there was none in this case?

A No, sir.

Q_ Are you aware that many lawyers and scientists

who have studied the matter in regard to lineup consider

it a much fairer and less suggestive identification proce -

dure than the showing of one man to a victim?

A Yes, sir, that's why I chose—

Q_ Would you speak up, please? —

-~A This iswhy that—I understand the fairness of a

lineup, and this is why I did not have a lineup for there

(21)

could not be fairness given to this person.

Q_ You didn't have a lineup because a lineup would

have been unfair?

A You, oft.

Q_ And you think what you did was fairer than a lineup?

ah Fe oe

Q___Now let me ask you this, what is the approximate

population of the Metropolitan jail, inmate population?

A Well, there's differences, Its capacity, I would

say, could hold approximately four to five hundred people.

Q_ How many is that?

A. 69

William A. McDaniel, Jr. - Direct

A Four to five hundred, that's my guess. I don't

really know.

Well, how many are in there on an average day?

Well, that's different also. :

Your best estimate?

Around a hundred, I'd say.

And was that about true in 1965?

I couldn't say.

Well now, how about the Juvenile Detention facility

here in Nashville, what's the approximate —

A It's entirely different today than it was at that time.

Q_ Well, what was the approximate population of

[22]

DFO PAPO

that facility at that time?

A Well, it was very small, because they didn't have

large quarters, and again, as far as number, I would have

to more or less guess. oe

Q_ Well, give me your best guess.

* A I'd say with girls and boys both, would be fifty,

would be their maximum, : i

Q Now Nashville is the home of the Tennessee State

Penitentiary, is it not?

A Yes, sir.

Q So that you had a number of persons who you could

have selected for a lineup in this case in 1965?

MR, DALE: If Your Honor please, this is direct

examination. I will object to leading.

MR. MELTSNER: Well, I think under Rule 43(b),

Your Honor, I'm perfectly authorized to use leading ques-

tions.

THE COURT: All right, go ahead.

THE WITNESS: I didn't think so at the time, no, sir.

BY MR, MELTSNER:

A. 70

William A. McDaniel, Jr. - Direct

Q___But did you go through the Juvenile Detention facility

on August 16, 19657

A We-—yes, we conferred with the judge, and as far

as trying to get someone of this young man's stature, which

[23]

there wasn't any available, —

Q_ What judge?

A At that time, it was Judge Tatum.

Q_ Was any order entered of any kind in Judge Tatum's

Court in this case concerning this matter?

A Of the lineup procedures?

Q_ That's correct.

A No, sir, there wasn't any order.

Q_ Did you ever inform Petitioner's attorneys that you

had gone to Judge Tatum concerning the lineup?

The District Attorney, no, sir.

Petitioner's attorneys?

I didn't understand that, sir.

Did you ever inform Petitioner's attorneys in 1965—

At that time—

—that you had gone —

At that time, I don't think that he had an attorney,

at the time we're speaking of.

Q Did you ever inform the attorneys that he had at

trial?

He was represented by Mr. Looby and Mr. Williams

at trial? -

A That was at the trial.

Q_ And you know Mr. Williams and Mr. Looby?

[24]

rFOPrPO PO >

A Yes, sir.

Q__ Did you ever inform them at any time that you had

A. 78

William A. McDaniel, Jr. - Direct

gone to Judge Tatum?

A No, not that Ican recall; they never asked me.

Q Did you testify at trial that you had gone to Judge

Tatum?

A No, sir, never was asked,

Q__ And your testimony here today is that you went to

Judge Tatum for the purpose of trying to find out if you

could hold the lineup in this case?

A No. That's not what I said.

Q Would you thentell me what your testimony is?

A You asked me if at that time were we using a line-

up procedure, which we were in 1965, and prior to that.

We checked with the facilities of our Metropolitan jail

trying to find, as far as, best, as far as stature, appear-

ance, there weren't any available.

We also tried Juvenile Court, which that is where if we

have a lineup, this is where we participate in the lineup

is at the Juvenile Detention quarters, not at the police

headquarters, so there was none available at Juvenile

Court as far as appearance,

This is what we believe in. We try to get at least two

people looking as much alike as possible.

Q_ So you recognized the lineup as a much fairer

[25]

procedure?

A Yes, but at this point, we—

Q___ That's my question.

MR, DALE: May it please the Court, I don't care

what Rule 43(b) says, he can't argue with this witness,

and he has to let him answer,

THE COURT: He has to let him finish if he has a

further explanation.

THE WITNESS: In my opinion, we could not have a

A. 72

William A. McDaniel, Jr. - Direct

fair lineup by having a person with young features and yet

a large body, we could not have given him a fair lineup.

In the jail would have been older features, and at the

Juvenile Detention would have been way smaller people.

BY MR, MELTSNER: .

Q Did you try and enlist any citizens to appear in this

lineup?

A Sir?

Q__ Did you try and enlist any citizens to appear ina

lineup?

A No, sir.

Q_ Now, captain, let me ask you this, Petitioner was

arrested on the night of the 16th of August, or the early

morning hours of the 17th, am I not correct?

A Yes, sir.

Q_ And the lineup was held on the morning of the

[26]

17th, is that correct?

A If you want to call it a lineup, yes, sir.

Q_ Or the identification procedures?

A Yes, sir.

Q__ So that your canvas of the jails took place the

morning of the 17th?

A That's correct, sir,

Q__ And you do recognize that a full lineup would have

been a fairer method of identification?

A Yes, sir.

Q _siIn this case?

A If we can get a fair lineup, it is best. .

Q That is standard operating procedure?

A Yes, sir, that is standard procedure,

Q__Now, do you recall testifying at the trial in 1965

that an Officer Harold Woods told Biggers to say certain

A. 7

William A. McDaniel, Jr. - Direct

words?

A Yes, sir.

Q Do you remember what those words were?

A Ican vaguely remember, but I believe, shut up or

I'll kill you. :

Q_._ And these words were spoken so that the victim,

Mrs. Beamer, could hear his voice?

A Yes, eir.

Q___ So that she could decide whether or not he was

[27]

the man?

A _ She could identify his voice, yes, sir,

Q_ Let me ask you this. Why, asa police officer,

with your many years of experience, why do you feel that

the lineup is a more reliable procedure for identification

than the sort of procedure which was used here?

MR, DALE: If Your Honor please, I'll object to that

as—well, it's a question asking Mr. McDaniel what he

feels, It also callsfor a conclusion of some sort on his

part. I think probably if rephrased, it—

THE COURT: Yes,

BY MR, MELTSNER: ~

Q_ Well, perhaps I can ask you on what basis you be-

lieve that the lineup is a superior and more reliable iden-

tification procedure than the one employed in this case,

drawing upon your experience as a police officer?

A Well, let me—may I give an example, sir?

Q Surely.

A Say that we have a suspect that's redheaded, light

features, light complexion. If we could have someone

either in the build or a person that we know that looks—

that's redheaded and also light complexioned, then we

might put in blonde headed people, we will not mix—if

this suspect is redheaded, we will not mix black, dark

A. 74

William A. McDaniel, Jr. - Direct

brown haired people with redheaded.

[28]

When the person to identify says that the person that

she wants to make a complaint about was redheaded, if

we find two, three or four redheaded people who are there,

approximately the same height, same build and all, and

when you put them in a lineup, why then to me that is the

true and fairest of all lineup procedures,

Q__ Now this crime had taken place about seven months

before the identification, had it not?

A It happened in January, yes, sir.

Q_ AndasI recall, it was at night?

A: Yes, sir.

Q_ And there was a dimly lit hallway where the victim

had been grabbed?

A That I do not know, sir.

Q_ Well, do you recall that the victim had identified

the assailant as having a teenage voice, a young person's

voice?

A I would have to look up her description; I can't

recall it,

Q_ Do you recall how she described him physically,

your best recollection?

A I would have to go to my notes, yes, sir.

Q Well, would you refer to your notes, please?

A All right, sir.

All right, sir, says his height was six feet

[29]

tall, a hundred and eighty poinds, he was dark hair,

medium or— medium to dark brown complexion,

Q_ Now are you willing to tell the Court today that

there was no one in custody in the city of Nashville on

-_

A. 75

William A. McDaniel, Jr. - Direct

August 17, 1965, in the morning, who had any of those

traits? eh :

A I'm saying that there wasn't. What I'm saying,

we didn't have one at Juvenile Detention quarters that

looked young in face with a big stature. We probably had

one big in jail, but not young features.

Q_ And you probably had some people whose features

were young, but who weren't that big, is that correct?

A I'm not saying that, no, sir.

Q Well, is that possible?

A Our interest—

Q Is that possible that you had someone with young

features?

A No, I'm not saying it was possible.

Q_ Are you saying it was not possible?

A I'm not saying it wasn't possible, I would not know

about it, but whether we had a large man with young fea -

tures, I know we didn't have that,

Q___ Did you go to every person in the cell blocks?

Did you look at every person?

A I called back to the officer or superior officer who-

ever was in charge at this time, I do not recall, and asked

[30]

them would they check their jail for a person of this descrip-

tion, which I do every time we have a lineup. ,

Q_ And you—

A Tell them what we want.

Q__ And you made no attempt to try to find someone in

the community?

A No, I did not go outside of our building.

Q Let me ask you just one final question at this time.

Mr. Biggers was arrested for the crime of loitering, as

I recall, is that correct?

A. 76

William A. McDaniel, Jr. - Direct

A Yes, sir, technical charge of loitering.

Q_ What was the character of the evidence against him

for the technical charge of loitering?

A We had another complaint which he had already

reenacted, and the loitering charge was more or less

placed on him as a hold,

Q_ Isee. Now this other complaint, was this a rape

complaint also?

A Attempt,

Q_._ And in other words, he was taken from the hospital

where he was taken into custody to reenact the crime in

front of another rape victim?

A No,

Q__sIn front of a female who was claiming that she had

been assaulted?

[31]

A No, sir.

Q_ Could you explain it then for me, because I'm not

quite sure.

A This other victim was in the hospital, had been ad-

mitted to Baptist Hospital some two hours before Mr.

Biggers arrived at the hospital himself,

Q__‘This is the Hubbard Hospital?

A Hubbard Hospital, which he had multiple lacerations

of arms and hands,

Q__Now did you bring him to her for identification in

the hospital?

A No, sir.

Q_. Well, how did he reenact the crime?

_ A .He took the officers back to the home of this vic -

tim and showed them exactly what took place, where the

woman) was standing, how his arm went through the door,

and so forth. The woman was not present.

a. TF

William A. McDaniel, Jr. - Cross

Q The woman was not present?

A No, sir.

Q Nowhas the defendant ever been charged on this

crime?

A Yes, sir.

Q Has he ever been tried on this charge?

A Nd, sir.

MR, MELTSNER: That's all I have.

[32]

CROSS -EXAMINATION

BY MR. DALE:

Q Captain McDaniel, why in the course of preparing

a lineup do you not go outside of the jail or outside of

Juvenile Detention to get people’ to stand in as members

of the lineup?

A This is something that, as long as I've been an

officer, it just never has been done. We never have put

off anything as—on the nature of this which we'll have to,

either by news media of some type, request somebody to

come in, We've never done this.

Q Isn't it because you can't account for the where-

abouts of the people in the community, and one of them

might just as well be the guilty party as the person who

is the suspect?

A I never thought of it that way.

Q___ But isn't that a possibility?

A \ It'sa sibility

Q_. And so therefore you use people whose whereabouts

you can account for? |

That's more so, if they do pick out other than the

suspect, then we do know that this subject waé in custody.

Q_ A lineup or a showup, as Mr. Meltsner has “ae

| |

A, 78

William A. McDaniel, Jr. - Cross

it, can also be beneficial to an accused, can it not?

A Oh, yes.

[33]

MR. MELTSNER: Now, Your Horor, I'm going to ob-

ject to the leading questions at this point,

MR, DALE: Now, may it please the Court —

THE COURT: I think I'll permit him to cross-examine

him,

MR, DALE: Thank you, Your Honor,

BY MR, DALE:

Q_ Now, Captain McDaniel, you were in charge more

or less of the identification procedures, the examination

if you will, of Mrs. Beamer, is that—

A. Yes, sir.

Q_sIs that an accurate statement?

A Yes, sir.

Q_ When Mrs, Beamer was brought to the jail, did the

police suggest to her that this is the man who did it, we

want your identification of him, we've got to have it to

' make a case? Was there anything of that nature said to

Mrs. Beamer during the course of that identification pro-

- cedure?

A No, sir.

Q_ Would you describe for the Court, please, exactly

what took place that night to the best of your—on that after-

noon, I believe it was, to the best of your recollection?

A Mr. Biggers ‘was in custody and at police head-

quarters. He was located in the detective bureau, in the

office of Dr. W. J. Core, who is now deceased. When Mrs.

[34] |

Beamer was brought to headquarters, she was placed in

the office now occupied by the sergeant of the detectives,

; \ \ |

oe

A Te

William A. McDaniel, Jr. - Cross

which Dr.—as far as directions, I will say Dr. Core's

‘office is on the east side of the building, the sergeant's

‘office on the west side of the building, which is not di-

orectly across from the office, but across the hall, but

jit's across the hall and a room dow.

Q Would you say it's diagonally across the hall from —

A Yes, but you cannot stand and look in one office

ito the other; it's that far down.

Q_ Isee,

A Mrs. Beamer, which there was another woman

talso in the room, plus myself.

Q Excuse me, captain, was this other woman also a

‘victim of somebody?

A I've been trying—I didn't make any notes of it,

‘and I can't truthfully say.

Q Can you answer this, do you recall her having said

«anything during the course of the identification that Mrs.

Beamer made of Mr. Biggers?

A itouarm

Q Okay, if you can't.

A Ido not know who she was or —but I do know she

was in there,

[35]

Q Okay. Excuse me, you were at the point—you had

Mrs. Beamer and this other woman unidentified in that

room. Now, if you will, proceed from there, please, sir.

A That is when I instructed Mrs. Beamer what was to

take place. told her that there would be a person to walk

down the bal . If she could identify this person when

he walked by the door and then proceeded back through

again, which one side and down, and then when he come .

back, she could see the other side, that way he was led

by two deecive which —

| |

2)

A. 80

William A. McDaniel, Jr. - Cross

Q_ You say led by two detectives, you mean preceded,

held on the arm, handcuffed to, or what do you mean by

that?

A No, had one in front of Mr. Biggers and then one

detective in the rear.

Were both of these gentlemen—

Just like three men, one behind each other.

Were both of these detectives in civilian clothes?

Yes, sir.

Were they both colored?

Yes, sir,

Go ahead, sir.

Which, as they passed, and they come back, pro-

ceeded back to the room, then the officers come—Sergeant

[36]

Woods and Officer Bailey come back to the office where

Mrs. Beamer was, and Mrs, Beamer—and then we asked

her did you recognize anybody, and she said, yes, that

was the person, the one, the biggest one was the one that

had raped her,

Q_ Now is Sergeant Woods a fairly good-sized individual?

A. Yes, sir.

Q_ How about Officer Bailey?

A Bailey is a medium—he's tall, but he's not quite

as big.

Q Okay. Now you say Mrs. Beamer said, yes, I

>O>O>O>O

recognize the biggest one?

A Yes.

Q_ All right. Now did she say anything else at tha

point?

A She said, I would also like for him to Tepeat these |

words, which I think, shut up or I'll kill you, to try to see

if I could identify his voice. I walked out of the office and

\ ' \ | [ \ \ ae '

’

A. 81

William A. McDaniel, Jr. - Cross

go and tell Sergeant Willis to bring Mr. Biggers to the

doorway and have him repeat this. Then I step back into

the room where Mrs. Beamer is, and when he comes to

the door, he's facing her, facing both of us, and which

Sergeant Woods then instructs him to repeat these words,

which he did. ‘Then he goes back to the room that he had

just come out of, and Mrs. Beamer says, yes, she identi-

fied the voice also.

[37]

Q Now there was also a chance,’ I suppose, in this

type of identification procedure that she could also say

that was not the man, is that not possible?

A That's possible.

Q Has that been done on occasions in your experience?

A Yes, I've had procedures like this before, and no

identification.

Q Do you know of your knowledge whether Mrs.

Beamer failed to identify a number of people that were

brought before her or before whom she was brought?

A Yes, sir.

Q_ Had she ever identified another person?

A No, sir.

Q_ Now on this loitering charge, if I understand your

testimony correctly, this was simply a technical charge

to enable you to hold Mr. Biggers pending the investiga -

tion of the Beamer case?

A No.

Q Oh, excuse me. Go ahead and explain it.

A No, at the time the loitering was placed against

him, which was placed at the Hubbard Hospital, this was

a technical car to hold him pending the complaint that

happened that night, August the 16th.

Q_ The very night that he was brought in? i

A. 82

William A. McDaniel, Jr. - Cross

[38]

A Yes, sir.

Q_ And the night preceding the morning or the day that

Mrs. Beamer identified him?

A And then the next day, by him being the description,

general description that we had had several complaints,

that is why we started calling these people in to view Mr.

Biggers,

Q_ On what basis, Captain McDaniel, would you say

it was fairer in this case to have—and I'll use Mr. Melts-

ner's texm—to have a showup as compared to a lineup?

In other words, a showup where you have one person?

A Well, this was strictly my —I say—well, my de-

cision, which I couldn't—to me, this was the most fair -

est—I couldn't have put him in the Juvenile Detention

quarters with small boys, to me that would not have been

fair,

Q_ Can you say without qualification that you in fact

considered the fairness of the lineup procedure in this

particular case?

A As long as I've been in the detective department,

which is 1955, I have never tried to make any suggestive

matter, either orally nor by any lineup, -I do not—

Q Now—excuse me,

A I do not like that, I want to be fair either way.

Q Can you then say—I'm sorry, I keep interrupting

[39]

you,

| A I'd rather see them tell me, no, is not the

pers than put in some ive matter

Q_ |Did you vary from that tice in case involv-

ing the |State of Tennessee v. thie Nathaniel Biggers?

A No, sir. Ly ee |

| ie eee |"

\ \

A. 83

William A, McDaniel, Jr. - Redirect

MR. DALE: I think that will be all, if Your Honor

please.

REDIRECT EXAMINATION

BY MR. MELTSNER:

Q_ Captain, you are being very tolerant of all of these

badgering lawyers, especially me. I have just a few more

questions here.

First of all, you mentioned that Mrs. Beamer had been

shown other suspects in the several months after the rape.

A Yes, sir, several suspects.

Q___ Had you brought her down to the police headquart-

ers?

A Yes, sir, she's come to police headquarters, and

we've carried mug shots to her on numerous times, and

I'm sure at some occasions, investigators have just picked

up a suspect off of the street and carried to her, her home.

Q__ And showed them to her?

A Yes, sir.

[40]

Q There?

A Fee, Oe.

Q So she is a permanent resident of Nashville, is

that not correct?

A Yes, she's—as far as I know.

Q__sAnd she's been freely available to the police de-

partment and cooperative in this case?

A Yes, sir, real cooperative.

, Q Now you mentioned the techni al charge of loitering

and I'm not cue clear about what oa eans. Is ita

fair statement 0 say that he really was 't loitering, but

this was a charge put on to hold him? | e

!

A. &

William A. McDaniel, Jr. - Redirect

A That's a charge at that time—which we do not use

it today —but in that year, why we were just like a vagrancy,

on juveniles, we would use the term of loitering, and on

the adult, we would use the charge of vagrancy.

Q_ And you used a charge of loitering even though he

was taken into custody while he was receiving medical

treatment?

A That's right. We could have charged him with

the curfew law, which we had at that time, but we did not.

Q You could have charged him with a violation even

though he was with his mother?

A He wasn't with his mother.

Q Did you pick him up at the hospital?

[41]

A _ No, I didn't personally.

Q__Now let me ask you this, you stated that you made

this decision about holding the kind of identification pro-

ceeding that was held in this case. Were you guided by

any rules or regulations of the department which specifi-

cally deal with this matter?

A No, sir. We have—like I said, we've used this

method before, and we've used lineup procedures which

I've always stated was to me the most fairest, if we can

get the general build, and I've had it both ways. I've had

* them Say, yes, this is the person; no, this is not the per-

son, and especially in checks, bad check writing, we've

used one person showup, as you refer to it, very success-

fully.

Q_ So you use a great number of showups?

A During that time, yes, sir. Not today.

Q_ Would you ~ that showups were used more often,

than lineups?

A_ No, sir.

A. 85

William A. McDaniel, Jr. - Redirect

Q__ Lineups were used about the same as showups?

A More, I would say.

Q___ Let me ask you this. Do your notes reflect the

time of this identification?

A This identification was —I don't have it down, but

it was made —I'd say right in the afternoon, early after-

noon.

[42]

Q___ Around noon or thereabouts ?

A Yes, sir, I'd say twelve to one o'clock.

Q_ And am I correct in stating that Archie Nathaniel

Biggers was dressed in the same clothes that he was wear-

ing when he was brought in?

A Yes, sir, I'd say that. I'm not positive; I wasn't

present when he was first brought in.

r Q_ Well, he has informed me that he was wearing the

“. clothes that he had worked in at a service station, and I

"just wonder whether you recall whether or not that was

the case?

. A Yes, sir, he worked at Red Ace Service Station

which they had lapels showing Red Ace and also his —I

think his ——

Q_ These are workmen's clothes?

A Working clothes, khaki, I believe.

Q__ And Nashville police officers don't dress quite that

way?

A_ No, I didn't say they were dressed alike, which

these officers, Mrs. Beamer knew them, for they went

and brought 'her up there.

Q Isee. These two officers were the ones?

A Yes} I did not use them as lineup, could not use

the officers and Mr. Biggers as a lineup, didn't want her

? bi cigeii) nt ee the two officers were to be

|

A. 86

William A. McDaniel, Jr. - Redirect

[43]

used for she knew these officers.

MR. MELTSNER: Thank you. Thank you, Captain.

THE COURT: Now let me clarify one or two little

matters.

The crime itself occurred on what date?

THE WITNESS: January the 22nd, 1965,

THE COURT: And when was the petitioner, the defend-

ant in the state court, when was he first apprehended, taken

into custody, or charged?

THE WITNESS: August the lé6th, 1965.

THE COURT: August 16th?

THE WITNESS: Yes, sir, approximately 11:30 p.m.

THE COURT: And how was he dressed at that time?

THE WITNESS: He was—like I say, I did not see him

at that time, but I'm pretty sure he had on the same cloth-

ing at seven o'clock the next morning when I arrived as

he had on at eleven o'clock that night.

THE COURT: Well, what is —

THE WITNESS: When I saw him, he had on work cloth-

ing, which was ——

THE COURT: . Well, when he was in the showup, that's

August 17th?

THE WITNESS: Yes, sir.

THE COURT: How was he attired at that time?

[44]

THE WITNESS: The same.

THE COURT: With work clothes on?

THE WITNESS: Work clothes on, yes, sir. °

| “ COURT: ‘And that had the |Red Ace on it, you say?

ane. Yes.

| THe OURT: Service station?| |

| THE WITNESS: He worked for Brooks re Ace Service

Station. — Ae Ae aay ie eS

A, 87

_ William A. McDaniel, Jr. - Redirect

THE COURT: How was he described at the time of the

crime as far as the witness ——

THE WITNESS: As far as dress?

THE COURT: Yes.

MR. DALE: If Your Honor please, this was seven

months before, unless you're referring to the second ——

THE COURT: The crime was January 27, 1965?

MR. DALE: Yes, sir.

THE COURT: Did she — how he was dressed at

that time? -

THE WITNESS: Let me—

MR. MELTSNER: I don't believe the state record says

anything about that.

THE COURT: All right.

MR. DALE: She is here, if Your Honor please, and

we'll——

[45]

THE COURT: She's going to testify?

MR. DALE: Yes, sir.

THE COURT: All right.

THE WITNESS: She gave a statement at that time, on

January the 22nd, if I can just glance over this, she might

have ——

THE COURT: This occurred at night in some apart-

ment house, is that right?

THE WITNESS: No, this occurred——

THE COURT: Tenement house, apartment house, or

what was it?

THE WITNESS: She was at her home, sir, and was

taken from her home out down the railroad track near the

intersection of Alpine Street, this is wher it —

THE COURT: Taken from her home? |

THE WITNESS: Yes, sir. Her young epeas's9 was

A. 88

William A. McDaniel, Jr. - Redirect

present and more or less the scare he placed on her that

if you didn't make your daughter quit screaming, I'll kill

her, and then he led the woman out the door.

THE COURT: All right.

BY MR. MELTSNER: JY

Vif

Q_ The daughter was present at this identification

proceeding?

~A = Well—

[46]

Q_ She was present at that time?

A Sir?

Q The daughter was present in August at this identi-

fication proceedings ?

A_ No.

Q_ She was not?

A No, she was not present.

Q Did she not testify at the trial that she could not

identify Mr. Biggers as the rapist?

A I'm not familiar with that, but I believe I heard

someone say that.

Q _sIf the record revealed that —

A If the record shows it, that's what happened.

Q And that would be generally true about your testi-

mony. You certainly had a much better recollection of

all of these events at the time of trial, did you not?

A See, I couldn't sit in the trial, I don't know what

each one of them testified.

QI see, but as to your own testimony, you surely

had a fresher view on the matter at that time, did you not?

A Oh, yes, sir. .

MR. MELTSNER: Thank you. M

E COURT: All right, that's all. |

| |

’ ’

WITNESS EXCUSED

A, 89

THE COURT: Call your next witness.

[47]

MR. MELTSNER: Dr. Pollack.

(The witness was sworn.)

THE CLERK: State your name, please.

THE WITNESS: Irwin Pollack.

THE CLERK: Just have that seat.

MR. MELTSNER: Your Honor, | intend to present ex-

pert testimony, and I do intend to qualify him by asking

questions about his background and degree, and after ask-

ing a few of these questions, | hope the Court will receive

in evidence a curriculum vita.

THE COURT: What is his specialty?

MR. MELTSNER: He is an experimental psychologist.

‘THE COURT: Ask him a few preliminary questions.

MR. MELTSNER: Let me state for the record that

Mr. Dale has a copy, and I believe agrees to it.

DR. IRWIN POLLACK,

a witness called to testify by and in behalf of the petitioner,

after having first been duly swom, was examined and tes-

tified as follows:

DIRECT EXAMINATION

BY MR. MELTSNER: |

Q Would you state your occupation?

A lama professor of psychology at the University

[48]

of Michigan, and research ia a in the Mental

Heaith Institute at the University of Michigan.

Q__ Would you state — to the Court the nature of

Seon i

A. 90

Dr. Irwin Pollack - Direct

your work as. a psychologist and your field of specializa -

tion?

A Iprimarily carry out research in the field of audi-

tory perception, hearing. I also teach in the department

of psychology at the University of Michigan.

Q_ Now would you describe for the benefit of the Court

some of your“experience-on committees in your specialty,

and if you have consulted with government, any experiences

‘doing that.

A Before I went to the University of Michigan, I worked

for fourteen years for the United States Air Force where

we worked primarily in the area of speech communication.

I now serve on a working group of the National Academy

of Sciences. It's called the Committee of Hearing and

Bio-Acoustics which advised the Department of Defense

-with respect to questions associated with identification.

I'm presently spending most of my time on a research

project of the National Science Foundation where ‘J carry

out fundamental research in the field of hearing.

Q Have you published in this field?

A Yes, I have.

) Q - Would you briefly describe some of your

[49]

publications ?

A Most of my publications are in the Journal df the

Accoustical Society of America. They number between

ninety and a hundred, I would guess. They are concerned

primarily with hearing and speech perception.

Q_ And have you conducted experiments ?

A Yes, I have, for the past twenty-three years, and

I am presently conducting experiments in this. particular

area. .

MR. MELTSNER: Rather than continuing to bring out

A, 91

Dr. Irwin Pollack - Direct

Dr. Pollack's credentials, Your Honor, I ask that the

statement of his background be introduced into evidence,

and that he be qualified as an expert.

THE COURT: Yes, let it be admitted; he qualifies.

THE CLERK: Exhibit 2.

(PETITIONER'S EXHIBIT NO. 2 was marked for

identification and filed. ) >

BY MR. MELTSNER:

Q_ Now, Doctor, have you read a document entitled

"Transcript of Record, Archie Nathaniel Biggers v. Ten-

nessee," in the Supreme Court of*the United States?

A Yes, I have.

Q__ And are you familiar with it?

A Probably not to the extent to which you lawyers

peruse your documents, but I've gone through it in fairly

[50]

conscientious detail.

Q Thank you. On the basis of your reading of this

document, were you able to form an impression as to the

procedures underlying Mrs. Beamer's identification of

}’ Archie Nathaniel Biggers?

A Yes, I was.

Q Now—

MR. DALE: May it please the Court —excuse me,

Mr. Meltsner —I don't know whether from reading that

document anybody can form—unless he is trained in the

law or in police work —can form an impression of identi-

fication procedures.

Now Dr. Pollack may very well be an expert in audio

or bio-acoustical work and psychology and so on, but I

don't see how, from a simple reading of the transcript,

that he’could form an impression and then testify as an

" expert on it as to an identification procedure.

. A. 92

Dr. Irwin Pollack - Direct

MR. MELTSNER: Your Honor, I'm asking the wit-

ness to testify’as to his opinion of the reliability of the

procedures employed as revealed by this record. Now

counsel has the opportunity on cross-examination to bring

out anything he wants about the rears yon vee

his testimony.

THE COURT: Well, I'll go ahead and receive the tes -

timony, and then I'll assess it at the proper time

[51]

and evaluate it.

BY MR. MELTSNER:

Q_ Would you state what opinion yon have formed as

to the reliability of the procedures underlying this identi-

fication ?

A Iam concerned with several aspects of the process

of identification in this particular case. I believe it's

called in the legal terminology sort of one-for-one on

identification rather than an identification from among a

lineup, and that is the particular aspect I'm most con-

cemed about, but-there are many other aspects which

I'v= gleaned from the record which make me concerned

with respect to this particular identification.

Q___What conclusion have you drawn, based on this

concern, as to the reliability of these procedures?

A Icome to the conclusion that there are many factors

which are prejudicial with respect to the defendant in this

identification process as revealed by the transcript.

Q Now what aspects of the process have led you to

that coaclusion ?

A I've already mentioned the one-for-one confronta-

tion. I'm concemed with respect to the very long time

lapse between the initial act and the time of identification.

May I consult with some notes that I made going through

this, Your Honor?

A. 93

Dr. Irwin Pollack - Direct

THE COURT: Yes.

THE WITNESS: I'm also concerned that the defendant .

was identified as a suspect to the person making the identi-

fication, and that he was requested to utter a specific state-

ment which had some obvious emotional connotations, and

that the complainant was surrounded by police officers

perhaps intent in finding for a particular suspect.

All of these things tended to—I would think, in my

opinion, for the complainant to identify the particular

subject as the subject in question.

BY MR. MELTSNER:

Q Now how would the one-on-one identification pro-

cedure lead to that tendency? In other words, what is it

about the one-on-one identification procedure which leads

you to conclude that there was a great deal of prejudice

here?

A May I digress for just a second, Your Honor?

In experimental tests, we try to distinguish between

what we call a forced choice procedure and the yes/no ~

procedures. In a forced choice procedure, basically,

the task of the subject is to pick one of several objects,

in this case several persons, pick one of that group which

is the most likely, and in the experimental laboratory, we

always include one true case among several false cases,

so that we can, in effect, test the veracity of the person

making the identification.

[53]

So that is called forced choice. It has the very nice fea-

ture that we can, at the same time of giving the test, we

can determine the accuracey of the identification.

But this of course is not possible in its true extent, al-

though the lineup attempts to get this, that particular direc -

tion, because you are asked to make a choice, and it is

_

A, 94

Dr. Irwin Pollack - Direct .

possible for the complainant to pick somebody other than

the particular suspect at hand.

Yes/no procedure in the laboratory is a situation where

the subject under question makes a judgment. Is this —

_ has a signal been presented, has an object under investi -

gation been presented, yes or no. It's easy to show that

for a given signal, for a given object, you can get the per-

son to Say yes maybe ninety-nine percent of the time, or

yes one percent of the time under the exactly same ex-

perimental conditions by just changing the conditions for

payoff in this particular situation.

The case that is —I can try to illustrate this, this is

the problem of a sonar operator on board a ship. He

hears a signal, and he has to inform his captain whether

indeed this is some enemy object there. Now if the con-

ditions are that by reporting yes, he doesn't prejudice

the integrity of his own ship, that is, no action has to be

committed as a result of that directly, then he will re-

port anything that's suspicious, so he will say yes more

often, because it's much more important not to miss an

actual target if a target appears than to say

[54]

yes when indeed there was no target.

On the other hand, if, as a result of his saying yes, the

captain has to expose his ship immediately so that there

is a grave danger that if—there's a grave danger if he

Says no——~if he says yes, indeed there's no target, then

he will be in a very dangerous situation.

Q_ Now, do I understand the burden of what you're

saying as applied to this case, that procedures which sug-

gest a particular result will tend to lead to a positive identi -

fication of the person presented?

A In the yes/no situation, this is indeed the case, yes.

A. 95

Dr. Irwin Pollack - Direct

Q_ Now you've mentioned some other factors which

supported your general conclusion of unreliability, and I

would like to comment about some of those. You men-

tioned the time lapse. How does the time lapse tend to

produce an unreliable identification?

A We all know about the fallibility of human memory.

One of the standard experiments in a general psychology

course is, during the first lecture, perhaps in front of

four or five hundred students, some act takes place in the

midst of the lecture, and at the end of the lecture, or per-

haps right after the act takes place, the students are asked

to report what happened, and the discouraging thing here

with a visual identification right in the midst of the student,

often

(55]

in very dramatic cizcumstences, you'll get a hundred per-

cent different answers.

The fallibility of human judgment, coupled with the fact

that a very long time lapse was —took place in this par-

ticular case—I was not able to tell from the record whether

the features of the voice that were identified by the com-

plinant were brought out immediately upon her initial com-

plaint or only in the subsequent testimony.

Q__ Well now, with respect to this reliance on the voice,

why does reliance on voice identification in a one-on-one

situation of this sort tend to produce an unreliable identi-

fication ?

A I'm sorry, could you please repeat? I was——

Q_ Why does reliance on voice produce or tend to pro-

duce an unreliable identification? What is it about the

voice that makes it particularly difficult as a means of

identifying a person.

MR. DALE: If Your Honor please, I don't think that

A. %

Dr. Irwin Pollack - Direct

the rule permitting Mr. Meltsner to lead applies to this

witmess, and I would therefore object to this.

THE COURT: Well, try not to lead him.

THE WITNESS: I'm concerned that in effect the sub-

ject's auditory memory of what was said changes with

time. That is unlike a photograph which doesn't depreciate

with time or disintegrate with time. Our

[56]

subjective memory of a particular auditory event does in-

deed decay with time so if you ask me what is it about the

voice that relates to this long-term memory, it's the im-

permanence, if you will, of the mental copy of what was

said, and so that —and we know from experiments that

the fallibilities of identification will indeed increase with

time.

BY MR. MELTSNER:

Q_ Have there been experiments done by you or other

social scientists which support your conclusion?

A_ Ihave a bibliography of voice identification here.

This was furnished to me by Professor Arthur House of

the Department of Speech Sciences, Purdue. It contained

approximately twelve references. Included among these

references was a study which I have performed, perhaps

the very first in this area, of voice identification under

controlled, experimental conditions.

Q I'm not going to burden the record with that biblio-

-graphy, but could you Summarize the general conclusions

of the authors there?

A The general conclusions ?

Q_ About voice identification.

A Is that voice identification is a fallible form of

identification, that is to say the accuracy of voice identi -

fication can achieve any one of a range of scores depending

A. 97

Dr. Irwin Pollack - Direct

[57]

upon the particular conditions under which it is examined,

but it is never infallible.

Q Would you compare it in any way with something

like fingerprints ?

A Oh, there's nothing like —it has nothing like the

specificity and integrity of fingerprints.

Q__ Would you say it has less specificity than physical

identification ?

A By physical, you mean sight?

Q Yes. 2

A I would tend to think that because so many moré”

cues that might be available in visual identification, that

visual identification would be somewhat more reliable.

Q Let me read you a statement, and then I'm going

to ask you whether you find it correct.

“Where the identification is by voice-alone, the

absence of some comparison involves grave danger of

prejudice to the suspect.”

MR. DALE: If Your Honor please, I believe that's a

quote right out of either Wade or Gilbert.

MR. MELTSNER: It's Palmer v. Peyton.

MR. DALE: Palmer v. Peyton, and I think this calls

for more than an expert conclusion on the part of this

witness. It's possibly a legal conclusion, and I ere

fore object.

[58].

THE COURT: This is out of a Supreme Court opinion?

MR. DALE: No, out of a Fifth Circuit.

MR. MELTSNER: No, it's a Fourth Circuit which the

Supreme Court cited with approval in Stovall v. Denno.

THE COURT: Well, I'll let him answer.

- A. 9%

Dr. Irwin Pollack - Direct

BY MR. MELTSNER:

Q Did you fiad that statement to be correct?

A_ I feel there are certain legalistic aspects I am be-

ing called to answer, and to that extent, I disqualify but

to paraphrase the statement in my own terms, to rely

solely upon a voice identification, I would be very uncom-

fortable.

I base this on the simple testimony, when my daughter

calls me on the telephone, I have two daughters, and I

can't tell which one is speaking for quite sometime.

Q_ Your testimony, would it be any different, however,

if there were no voice identification in this case, would

you still conclude as you had concerning the reliability of

this identification ?

A With respect to the features of a leng-tiiee lapse,

with respect to the features of a sort of one-on-one confronta- ;

tion, with respect to the features of a subject being identi -

fied as the suspect, these are all factors that are not spe-

cific to voice identification, although voice identification,

[59]

I would feel, is unusually ‘susceptible under these circum- ?

stances.

Q_ And these factors led you to what conclusion?

Would you state your conclusion, if.it were just based on

those factors as to the reliability of the procedures?

A The procedures leave a lot to be desired. I should

Say that the procedures are open to question with respect

to the absolute identification of a particular defendant in a

particular situation. I don't wish to make any kind of

comment with respect to the particular individuals con -

cerned, I have no knowledge in this particular case.

Q Ofcourse not. We're talking about the procedures,

and your testimony is that those leave a great deal to be

sutiaecolioecinstinensansiiaeibiiontentilll

A. 99

Dr. Irwin Pollack - Direct

deiieal is that correct?

A That is correct.

Q_ Now I'm going to read a statement, and I would

just like to have your comment on it, and this is from

Wall's Treatise on Pre-trial Identification. I believe it

was quoted in the Wade case:

, "As bad as a showup is, there are a number of

ways it can be made worse. One method is to point

out the suspect to the witness even before the showup

indicating his status as a suspect. If this practice is

not deemed suggestive enough, then the suspect, when

shown alone, can be required to act or speak in the

[60]

manner in which the perpetrator of the crime is sup-

posed to have acted or spoken.

Do you agree?

A Repeat that, please.

Q_ "As bad as a showup is, there are a number of ways

it can be made worse. One method is to point out the sus-

pect to the witness even before the showup indicating his

Status as a suspect. If this practice is not deemed sug-

gestive enough, then the suspect, when shown alone, can

be required to act or speak in the manner in which the

perpetrator of the crime is supposed to have acted or

spoken,"

A’ By showup, it's lineup?

THE COURT: Means one-on-one.

THE WITNESS: I entirely agree with the gist of that.

I was hung up with respect to the showup, but these are

features which indeed are prejudicial, I believe, to the

proposed defendant.

THE COURT: We'll take a short recess at this time.

(Whereupon, a short recess was had, after which the

following further proceedings were had:)

| A. 100

Dr. Irwin Pollack - Direct

THE COURT: All right, proceed. .

MR. MELTSNER: I just have a few more questions

[61]

of Dr. Pollack, Your Honor. |

THE,COURT: All right, sir.

BY MR. MELTSNER:

Q__I would like to clarify this matter. You have tes-

tified that a lineup is a more reliable procedure than the

one-on-one procedure used in this case.

Now suppose a lineup does not contain persons who look

very similar to the suspect? Do you have an opinion as

to whether it is still a more reliable procedure than a one-

on-one identification? Do you have an opinion?

A Yes, I do.

Q__ And would you state it for the Court?

A _ I believe a lineup can be so constituted as to be

very prejudicial to a defendant. For example, if the de-

fendant has been identified as black, and the lineup con-

sists of one black man and ten white men, I would think it

would not servé a particulary strong selective role, but

to the extent to which there is opportunity in the lineup of

making confusions, it protects the defendant to the extent

to which the complainant can pick out someone other than

the defendant. There is no opportunity to do that under

the one-for-one confrontation.

Q_ Now one final —

A There's an opportunity to make an error is what I‘m

saying relative to the particular defendant, particular :

- [62]

suspect in question.

Q__ There's an opportunity for an error in which pro-

cedure?

A There is an opportunity in the lineup procedure to

y A. 101

Dr. Irwin Pollack -»Cross

identify someone other than the suspect.

Q_ Isee. Now again, just to clarify, and so there's

no misunderstanding, you have testified as to the relia-

bility of voice identification procedures. Assume fora -

moment that there were no voice identification procedures

employed here, what would your opinion be as to the re-

liability of the identification procedure used?

A My opinion with respect to such factors as the

length of time between the act and the identification, the

one-on-one confrontation, the identification of the par-

ticular individual as a suspect, all of these might lead the

complainant to identify a particular person under those

circumstances.

MR. MELTSNER: Thank you.

CROSS - EXAMINATION

BY MR. DALE:

QQ Dr. Pollack?

A . Yes, sir.

Q Perhaps I misunderstood, according to the data that

was given to me by Mr. Meltsner containing your accom-

plishments, et cetera, and qualifications, I note that you

[63]

are, and I would certainly not question your expertise con-

cerning acoustics or audio or something of the kind. '

A That's correct. .

Q__ But now are you an expert on eyewitness identifica -

tion, or would you consider yourself to be an expert on

that? «

A I would not consider myself to be an expert with

respect to eyewitness identification. 1 would, however,

if I could qualify that remark, however.

Q_ Certainly.

A, 102

Dr. Irwin Pollack - Cross

A __ I would feel that I could comment with respect to

aspects of the procedure associated with any particular

identification, that is, I don't feel I'm an expert witness

because I have the power to pick out from voices a par-

ticular voice. I don't pretend this particular skill. I

can only comment with respect to the underlying procedures

associated with any identification situation.

Q___ But you do know the factors that one should consider

or you think one should consider when identifying a person

through voice or ——

A Many of these factors I would submit are identical

in the case of visual identification. I don't pretend to be

an expert in visual identification, but such things as the

fallibility of human memory and things of this type are not

specific to voice identification.

[64]

Q Is there not an optical memory and an audio memory?

A There indeed is. If you ask me which is more re-

liable ——

Q_ That is my next question.

A I would say that the visual memory is more reliable }

over a passage of time. If you ask me to make quantitative

estimates, I would have to make blue sky estimates, but in

any case, it's quite fallible.

Q_ Did you assume, in reading this transcript, that

Mr. Biggers was identified by the rape victim only by

voice identification ?

A No, I—no. Let me answer that question.

Q___To what extent, then, was there a reliance by,

according to your reading of the transcript, was there a

reliance by the victim on optical identification?

A I'm perhaps being asked to make a judgment that

the jury was asked to make, and I feel uncomfortable in

——

—_—e—

A. 103

Dr. Irwin Pollack - Cross

this legalistic situation.

Qs Let me read some language ——

A As I read the transcript, it seemed to me that the

primary mode of identification here was auditory, and

that was how I read the transcript.

If you ask me how the jury interpreted the particular

set of evidence with respect to optical and auditory

[65]

identification, I can't answer that.

Q_ Well, let me read from the transcript a couple of

lines, and I don't know how to get you to the right page on

that, but this is Officer Bailey's testimony at the trial.

"Q _ But that was one of the ways she identified

him, wasn't it?

"A No, she identified him by looking at him,

and said he was the one.

"Q Once she looked at him, that was all by which

she identified him?

"A No, he said something, but I don't know ex-

actly what he said, sir."

On the next page, same questioner, same answerer.

"Q Had she identified him before he was ever

asked to talk?

"A Sir?

"Q Had she identified him before he was ever

asked to talk?

"A Yes, sir."

Now this is admittedly only the testimony of one person,

and it relates to the pre-trial confrontation in the police

Station.

A Yes, sir.

Q__ But now, assuming that that is the fact, that

A. 104

Dr. Irwin Pollack - Cross

[66]

she did identify him by visual identification procedures as

opposed to audio or voice identification, does that neces -

sitate a reconsideration on your part?

A I don't think it necessitates a reconsideration with

respect to the factors that give rise to a situation which

is prejudicial with respect to the defendant. It does give

rise to the problem that if visual identification is some-

what more reliable than auditory identification; then in-

deed this evidence should be weighted more ——

Q Then I—

A May I quote from one section which gives me the

opposite impression?

Q_ Certainly.

A This is with respect to the direct examination of

Mr. McDaniel. I'msorry. Yes, Mr. McDaniel.

“GEN. HOLLINS: At any time, were you present

when the Defendant was asked to talk?

"A Yes, sir.

"Q And what —when did that take place?

“A Right at that time when she iden——" and

then he stopped—"saw him, she asked us to have him

repeat a question which he repeated. That, and she

also by voice, yes, sir."

The implication was that, as I read that, and I realize

I'm not on this stand to be asked what-my legal

[67]

interpretation of testimony is, but as I read that, it seemed

to imply that the primary mode of identification was through

voice, because once you had the opportunity for identifica -

tion, visually, ‘the officer specifically demurred from tak-

ing that line of approach.

Q_ Now you, I am assuming, are familiar with the

A. 105

Dr. Irwin Pollack - Cross

process of questioning and answering in a courtroom.

A No, I am not.

Q__I meant to ask you, have you testified in criminal

cases ?

A I have never done that, sir.

Q_ Isee.. Well now, in a case of this kind, such as.

the transcript we're reading from, the prosecuting attorney

will ask the question, the witness will respond, and then

on cross-examination, the same procedure is employed.

In this particular instance, the man whose testimony you

just read preceded you on to the stand. He testified that

she identified him by sight, and then asked that he be re-

quired to say the words, shut up or I'll kill you.

Now he testified under oath that that was what happened.

Does that necessitate a reconsideration on your part?

* A It necessitates a reconsideration with respect to

the extent to which the entire mode of identification was by

oral means alone; yes, it does.

[68]

Q In other words, I fully understand that you are not

retracting your opinion that this situation is an unduly sug-

gestive one’

That is correct.

Is that correct?

That is correct.

But is that accurate?

That is correct.

But it does mean that your reliance on voice identi-

fieation is perhaps, assuming this testimony to be true,

is perhaps somewhat misplaced?

A I must go along with that.

Q__ All right, sir. Did you lean from your reading

of the transcript that there was another woman victim in

ODrArA >

en

A. 106

Dr. Irwin Pollack - Cross

the same room with Mrs. Beamer, the victim allegedly

raped by Mr. Biggers, at the time this identification was

made?

I'm not sure it appears in there, I'm not trying to trick

you. I don't know if it's in the transcript.

A It seemed to me there was a lot of sparring among

the defense and prosecution attorneys with respect to the

possibility of mistrial if this matter came out before the

jury, because that would prejudice the jury with respect

to the particular defendant.

Q__ This happened to relate, if I may make this state-

ment, this happened to relate to another person as opposed

[69]

to the woman who was seated in the police station with Mrs.

Beamer at the time, but assume, as an expert on identifi-

cation of this kind, that there is another woman seated in

the same room with Mrs. Beamer at the time Mr. Biggers

is brought to the door, or.at the time he walks to the door.

Now assume that Mrs. Beamer says, that's the man, and

the other woman says, that's not the man, referring to an

entirely different crime.

Does this necessitate a reconsideration of your state-

ments as to the suggestivity, if that's a word, suggestive -

ness, of this situation? :

A If I understand your line of questioning, what you're

asking is, is this additional evidence to be considered in

the pool of evidence with respect to the probability that

the defendant indeed —or the suspect indeed —

Q__I wish you had phrased the question for me.

A But certainly it's admissible with respect to the

probability of involvement, but insofar as it improves the

procedure of a one-for-one confrontation, I would submit

that as such it does not improve that aspect of the pro-

A. 107

Dr. Irwin Pollack - Cross

cedure.

Q __sIn that—excuse me.

A If you asked me if each of two witnesses independ-

ently corroborate each other with respect to a particular

crime, if it is more likely that the defendant indeed is

guilty of one of the two, then I would have to say yes.

[70]

Q__siBut this is something that should be considered in

the totality of circumstances with regard to this particular

identification procedure, could you say that?

A I really must confess ignorance, Your Honor, be-

cause it seemed to me that the Court went to very great

pains to separate these two cases as far as it's being preju-

dicial.

Q I tried to explain it to you, Doctor —excuse me one

moment —the woman whose situation appeared in this tran-

script was not the woman seated in the police station with

Mrs. Beamer. This is a hypothetical, to the extent that

you are not familiar with it in the transcript.

I want you to bear that in mind. The lady that you read

about, the other lady in this transcript, is not the lady

seated in the police station. So you may dismiss that

from your mind. This lady is another victim, seated

with Mrs. Beamer, attempting to identify Mr. Biggers

when he walks in the door. She says, that's not the man;

Mrs. Beamer says, that is the man.

My question to you, hypothetical to the extent that you

are not familiar with it, is does this indicate to you that

the total picture was so suggestive as to lead these wit-

nesses, these people who are attempting to identify this

suspect, to say definitely that this is the man?

A If your question to me is that, is the total situation

So suggestive that the particular complainant would

A. 108

[71]

automatically identify the individual as the particular guilty

party, so suggestive that she would automatically identify

the particular individual as the guilty party, then I would

have to admit that here is an example of a situation where

another complainant in the same situation does not auto-

matically identify him, so if the essence of your question

is the overbearing suggestiveness of the situation so great

as to automatically identify the individual, then indeed you

have a form of —I think very weak —but a form of proof

that it is not absolutely conclusive.

Q___Now you mentioned something about ninety -nine

times out of a hundred, or one time out of a hundred.

Would you go through that for me one more time? Do you

recall your testimony on direct examination?

A Yes, I probably goofed that up, but basically what

I'm trying to say is that if I take a subject in a laboratory,

and I set up a reward schedule so that I give them a dollar

every time —when a signal appears, he says, yes, I heard

a signal, but when a signal is not presented, and he says,

yes, I hear a signal, I don't penalize him, then he will

be saying most of the time, yes, I hear a signal, and he

will continue to respond in this particular way.

On the other hand, if I balance this in

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