Opinion — Neil v. Biggers

A

NOTE: Where it is deemed desirable, a syllabus (headnote) will

be released, as is being done in connection with this case, at the time

the opinion is issued The syllabus constitutes no part of the opinion

¢ t has been repared by the Reporter ions for

the con of the reaber. Bee United States v. Detroit Lumber

» Oe., 200 U.8. 821, 837.

SUPREME COURT OF THE UNITED STATES

Syllabus

NEIL, WARDEN v. BIGGERS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

ee THE SIXTH CIRCUIT

No. 71-586. Argued October 18-19, 1972—

Decided December 6, 1972

‘Respondent was convicted of rape on evidence that consisted in part

_ of testimony concerning the victim’s visual and voice identification

-* of respondent at a station-house showup that occurred seven

~ months after the rape. The victim, who had been in the presence

+ Of her assailant a considerable time and had directly observed him

| indoors and under a full moon outdoors, testified that she had “no

_ doubt” that respondent was her assailant. She had previously

_ Biven the police a description of her assailant, which was confirmed

__ by a police officer. Before the showup where she identified re-

_ spondent, the victim had made no identification of others who were

| presented at previous showups, lineups, or through photographs.

- The police asserted that they used the showup technique because

_ they had difficulty in finding for a lineup other individuals gener-

ally fitting respondent’s description as given by the victim. The

Tennessee Supreme Court’s affirmance of the conviction was af-

firmed ‘here by an equally divided Court. 390 U. 8. 404. Re-

“Spondent then brought a habeas corpus action in District Court.

After rejecting the petitioner’s contention that this Court’s af-

‘firmance constituted an actual adjudication within the meaning

~ of 28 U. 8. C. § 2244 (c) and thus barred further review of the

_ showup identification in a federal habeas corpus proceeding, the

District Court, noting that a lineup is relatively more reliable

than a showup, held that the confrontation here was so suggestive

to violate due process. The Court of Appeals affirmed. Held:

~ 1. This Court’s equally divided affirmance of respondent’s state

® eourt conviction does not, under 28 U.S. C. § 2244 (c), bar further

@ federal relief by habeas corpus, since such an affirmance merely

yends the process of direct review but settles no issue of law.

I

2

0 NEIL v. BIGGERS

Syllabus

2. While the station-house identification may have been sug-

gestive, under the totality of the circumstances the victim’s identi-

fication of respondent was reliable and was properly allowed to

go to the jury. Pp. 7-13.

448 F. 2d 91, affirmed in part, reversed in part, and remanded.

Powe, J., delivered the opinion of the Court, in which Buren,

C. J., and Wurre, Buacxuoun, and Reunquist, JJ., joined. Bren-

NAN, J., filed an opinion concurring in part and dissenting in part,

in which Dovetas and Srewart, JJ., joined. MarsHALL, J., took

no part in the consideration or decision of the case.

sedost & ‘ormal revision before evasion

ject tes States

of Decisions, Supreme Court a the

Reporter

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in order that corrections may , rbographical oF

SUPREME COURT OF THE UNITED STATES

No. 71-586

William §. Neil, Warden,)On Writ of Certiorari to the

v. United States Court of Ap-

Archie Nathaniel Biggers.) peals for the Sixth Circuit.

[December 6, 1972]

Mr. Justice Powe. delivered the opinion of the

Court.

In 1965, after a jury trial in a Tennessee court, respond-

ent was convicted of rape and was sentenced to 20 years’

imprisonment. The State’s evidgnce consisted in part of

testimony concerning a station house identification of re-

spondent by the victim. The Tennessee Supreme Court

afirmed. Biggers v. State, 219 Tenn. 553, 411 S. W. 2d

~ 696 (1967). On certiorari, the judgment of the Tennessee

Supreme Court was “affirmed by an equally divided

Court.” Biggers v. Tennessee, 390 U.S. 404 (1968) (Mr.

Justice MARSHALL not participating). Respondent then

brought a federal habeas corpus action raising several

claims. In reply, the State contended that the claims

were barred by 28 U.S. C. § 2244 (c), which provides in

pertinent part:

“In a habeas corpus proceeding brought in behalf

of a person in custody pursuant to the judgment of

a State court, a prior judgment of the Supreme Court

of the United States on an appeal or review by a writ

of certiorari at the instance of the prisoner of the

decision of such State court, shall be conclusive as

to all issues of fact or law with respect to an as-

serted denial of a Federal right which constitutes

ground for discharge in a habeas corpus proceeding,

actually adjudicated by the Supreme Court there-

Oe

2 NEIL ». BIGGERS

The District Court held that the claims were not barred

and, after a hearing, held in an unreported opinion that

the station house identification procedure was so sug-

gestive as to violate due process. The Court of Appeals

affirmed. Biggers v. Neil, 448 F. 2d 91 (1971). We

granted tertiorari to decide whether an affirmance by an

equally divided Court is an actual adjudication barring

subsequent consideration on habeas corpus, and, if not,

whether the identification procedure violated due proc-

ess. 405 U. S. 954 (1972).

I

The intended scope of the phrase “actually adjudi-

cated by the Supreme Court” must be determined by

4reference to the peculiarities of federal court jurisdiction

and the context in’ which § 2244 (c) was enacted. Ju-

risdiction to hear state prisoner claims on habeas corpus

was first expressly conferred on the federal courts by the

Judiciary Act of 1867. Thereafter, decisions of this Court

established not only that res judicata was inapplicable,

e. g., Salinger v. Loisel, 265 U. S. 224, 230 (1924); Fay

v. Nowa, 372 U. S. 391, 423 (1963), but also that federal

courts were obliged in appropriate cases to redetermine

issues of fact and federal law. By the same token, the

Court developed a number of limiting principles to re-

strain open-ended relitigation, among them that a succes-

sive habeas corpus application raising grounds rejected in

& previous application might be denied without reaching

the merits. Salinger v. Loisel, supra, 265 U. S., at 231.

In 1948, Congress codified a version of the Salinger rule

in 28 U. S. C. § 2244. As redesignated and amended in

1966, § 2244 (b) shields against senseless re tition \of

claims by state prisoners without endangering the prin--

ciple that each is entitled, other limitations aside, to a

redetermination of his federal claims by a féderal court

on habeas corpus. With this in mind, the purpose of

NEIL v. BIGGERS 3

§ 2244 (c), also enacted in 1966, becomes clear. This

subsection embodies a recognition that if this Court

has “actually adjudicated” a claim on direct appeal or

certiorari, a state prisoner has had the federal redetermi-

nation to which he is entitled. A subsequent application

for habeas corpus raising the same claims would serve

no valid purpose and would add unnecessarily to an

already overburdened system of criminal justice.’

In this light, we review our cases explicating the dis-

position “affirmed by an equally divided Court.” On

what was apparently the first occasion of an equal di-

vision, The Antelope, 23 U. S. (10 WHeat.) 66 (1825),

the Court simply affirmed on the point of division with-

out much discussion. 23 U.S. (10 Wheat.), at 126-127.

Faced with a similar division during the next Term, the

Court again affirmed, Chief Justice Marshall explaining

that “the principles of law which have been argued can-

not be settled; but the judgment is affirmed, the Court

being divided in opinion upon it.” Etting v. Bank of

the United States, 24 U. S. (11 Wheat.) 59, 78 (1826).

As was later elaborated, in such cases it is the appellant

or petitioner who asks the Court to overturn a lower

court’s decree.

“If the judges are divided, the reversal cannot be

had, for no order can be made. The judgment of

the court below, therefore stands in full force. It is,

indeed, the settled practice in such case to enter a

*The legislative history adds little. The Senate Report states, ‘

cryptically, that “[t]his subsection is intended to give a conclusive

presumption only to actual adjudications of Federal rights, by the

Supreme Court, and not to give such a presumption to mere denials

of writs of certiorari.” S. Rep. No. 1797, 89th Cong., 2d Sess., 2

(1966). We conclude from this only that Congress did not expressly

address itself to the effect of an affirmance by an equally divided

* Court. Nor is this surprising in view of the rarity of such divided

affirmances in criminal cases. .

4 NEIL v. BIGGERS

judgment of affirmance; but this is only the most

convenient mode of expressing the fact that the

cause is finally disposed of in’conformity with the

action of the court below, and that that court can

proceed to enforce its judgment. The legal effect

would be the same if the appeal, or writ of error,

were dismissed.” Durant v. Essex Co., 74 U.S. (7

Wall.) 107, 112 (1868).

Nor is an affirmance by an equally divided Court entitled

to precedential weight. Ohio ex rel. Eaton v. Price, 364

U. S. 263, 264 (1960). We decline to construe § 2244

(c)’s bar as extending to claims on which the judgment

of a state court stands because of the absence of a ma-

jority position in this Court, and accordingly conclude

that the courts below properly reached the merits.’

il

We proceed, then, to consider respondent’s due proc-

ess claim.’ As the claim turns upon the facts, we must

2'We have been aided, and are confirmed in this view, by the

thoughtful opinion of Judge Mansfield in United States ez rel. Radich

vy. Criminal Ct. of City of New York, 459 F. 2d 745 (CA2 1972),

cert. pending sub nom. Ross v. Radich, No. 71-1510.

3 The dissent would have us decline to address the merits because

the District Court, after an evidentiary hearing, found due process

to have been violated; and the Court of Appeals—after reviewing the

entire record—found that “the conclusions of fact of the district

judge are [not] clearly erroneous.” App. Pet. A-7. It is said that

we should not depart from “our long established practice not to

reverse findings of fact concurred in by two lower courts unless shown

to be clearly erroneous.” Post, at —. This rule of practice, under

which the Court does not lightly overturn the concurrent findings of

fact of. two lower federal courts, is a salutary one to be followed

where applicable. We think it inapplicable here where the dispute

between the parties is not so much over the elemental facts as over

the constitutional significance to be attached ta, them. Moreover,

this is a habeas corpus case in which the facts are contained primarily

<a

NEIL v. BIGGERS 5

first review the relevant testimony at the jury trial and

at the habeas corpus hearing regarding the rape and the

identification. The victim testified at trial that on the

evening of January 22, 1965, a youth with a butcher

knife grabbed her in the doorway to her kivchen:

“A. [H]e grabbed me from behind, and grappled—

twisted me on the floor. Threw me down on the

floor.

“Q. And there was no light in that kitchen?

“A. Not in the kitchen.

“Q. So you couldn’t have seen him then?

“A Yes, I could see him, when I looked up in his

face.

“Q. In the dark?

“A. He was right in the doorway—it was enough

light from the bedroom shining through. Yes, I

could see who he was.

“Q. You could see? No light? And you could

see him and know him then?

“A Yes.” Tr. of Rec., pp. 33-34.

When the victim screamed, her 12-year-old daughter

came out of her bedroom and also began to scream. The

assailant directed the victim to “tell her [the daughter]

to shut up, or I’ll kill you both.” She did so, and was

then walked at knifepoint about two blocks along a rail-

in the state court record (equally available to us as to the federal

courts below) and where the evidentiary hearing in the District

Court purported to be “confined” to two .specific issues which we ,

deem not controlling. Of the nine cases cited in the dissenting

opinion in support of the rule of practice urged upon us, eight of

them involved civil litigation in the federal system. Only one of

the cases cited, Boulden v. Holman, 394 U.S. 478 (1969), involved a

habeas corpus review and the Court simply held—on the basis of

“an independent study of the entire record”—that the conclusion

reached by the District C-~rt and the Court of Appeals “was justi-

fied.” 304 U. 8., at 478.

6 NEIL v. BIGGERS

road track, taken into a woods, and raped there. She

testified that “the moon was shining brightly, full moon.”

After the rape, the assailant ran..off, and she returned

home, the whole incident having taken between 15 min-

utes and half an hour.

She then gave the police what the Federal District

Court characterized as “only a very general description,”

describing him as “being fat and flabby with smooth skin,

bushy hair and a youthful voice.” Additionally, though

not mentioned by the District Court, she testified at the

habeas corpus hearing that she had described her as-

sailant as being between 16 and 18 years old and between

five feet ten inches and six feet tall, as weighing between

180 and 200 pounds, and as having a dark brown com-

plexion. This testimony was substantially corroborated

by that of a police officer who was testifying from his

notes.

On several occasions over the course of the next seven

months, she viewed suspects in her home or at the police

station, some in lineups and others in showups, and was

shown between 30 and 40 photographs. She told the

police that a man pictured in one of the photographs had

features similar to those of her assailant, but identified

none of the suspects. On August 17, the police called

her to the station to view petitioner, who was being de-

tained on another charge. In an effort to construct a

suitable lineup, the police checked the city jail and the

city juvenile home. Finding no one at either place fitting

petitioner’s unusual physical description, they conducted

a showup instead.

The showup itself consisted of two detectives walking

respondent past the victim. At the victim’s request, the

police directed petitioner to say “shut up or I’ll kill you.”

The testimony at trial was not altogether clear as to

whether the victim first identified him and then asked

that he repeat the words or made her identification after

ee

NEIL v. BIGGERS 7

he had spoken.* In any event, the victim testified that

she had “no doubt” about her identification. At the

habeas corpus hearing, she elaborated in response to

questioning.

“A. That I have no doubt, I mean that I am sure

that when—see, when I first laid eyes on him, I knew

that it was the individual, because his face—well,

there was just something that I don’t think I could

ever forget. I believe——

“Q. You say when you first laid eyes on him,

which time are you referring to?

“A. When I identified him in the courthouse when

I was took up to view the suspect.” Pet. App., p.

127.

We must decide whether, as the courts below held, this

identification and the circumstances surrounding it failed

to comport with due process requirements.

III

We have considered on four occasions the scope of due

process protection against the admission of evidence de-

riving from suggestive identification procedures. In

4 At trial, one of the police officers present at the identification

testified explicitly that the words were spoken after the identification.

The victim testified:

“Q. What physical characteristics, if any, caused you to be able

to identify him?

“A. First of all—uh—his size,—next I could remember his voice.

“Q. What about his voice? Describe his voice to the Jury.

“A. Well, he has the voice of an immature youth—I call it an

immature youth. I have teen-age boys. And that was the first

thing that made me think it was the boy.” Tr. of Rec., p. 17.

The colloquy continued, with the victim describing the voice and

other physical characteristics. At the habeas corpus hearing, the

victim and all of the police witnesses testified that a visual identifica-

tion preceded the voice identification. Pet. App., pp. 80, 123, 134.

8 NEIL v. BIGGERS

Stovall v. Denno, 388 U. S. 293 (1967), the Court held

that the defendant could claim that “the confrontation

conducted . . . was so unnecessarily suggestive and con-

ducive to irreparable mistaken identification that he

was denied due process of law.” 388 U. S., at 301-302.

This, we held, must be determined “on the totality of

the circumstances.” We went on to find that on the

facts of the case then before us, due process was not vio-

lated, emphasizing that the critical condition of the in-

jured witness justified a ‘showup in her hospital room.

At trial, the witness, whose view of the suspect at the

time of the crime was brief, testified to the out-of-court

identification, as did several police officers present in her

hospital room, and also made an in-court identification.

Subsequently, in a case where the witnesses made in-

court identifications arguably stemming from previous

exposure to a suggestive photographic array, the Court

restated the governing test:

“[WlJe hold that each case must be considered on

its own facts, and that convictions based on eye-

witness identification at trial following a pretrial

identification by photograph will be set aside on that

ground only if the photographic identification pro-

cedure was so impermissibly suggestive as: to give

rise to a very substantial likelihood of irreparable

misidentification.” Simmons v. United States, 390

U. S. 377, 384 (1968).

Again we found the identification procedure to be sup-

portable, relying both on the need for prompt utilization

of other investigative leads and on the likelihood that the

photographic identifications were reliable, the witnesses

having viewed the bank robbers for periods of up to five

minutes under good lighting conditions at the time of

the robbery.

NEIL v. BIGGERS 9

The only case to date in which this Court has found

identification procedures to be violative of due process

is Foster v. California, 394 U.S. 440, 442 (1969). There,

the witness failed to identify Foster the first time he

confronted him, despite a suggestive lineup. The police

then arranged a showup, at which the witness could make

only a tentative identification. Ultimately, at yet an-

other confrontation, this time a lineup, the witness was

able to muster a definite identification. We held all of

the identifications inadmissible, observing that the iden-

tifications were “all but inevitable” under the circum-

stances. 394 U.S., at 443.

In the most recent case of Coleman v. Alabama, 399

U.S. 1 (1970), we held admissible an in-court identifica-

tion by a witness who had a fleeting but “real good

look” at his assailant in the headlights of a passing car.

The witness testified at a pretrial suppression hearing

that he identified one of the petitioners among the par-

ticipants in the lineup before the police placed the par-

ticipants in a formal line. Justice BRENNAN for four

members of the Court stated that this evidence could

support a finding that the in-court identification was

“ “entirely based upon observations at the time of the

i

assault and not at all induced by the conduct of the

lineup.” 399 U.S., at 5-6.

Some general guidelines emerge from these cases as to

the relationship between suggestiveness and misidenti-

fication. It is, first of all, apparent that the primary

evil to be avoided is “a very substantial likelihood of

irreparable misidentification.” Simmons v. United

States, supra, 390 U. S., at 384. While the phrase was

coined as a standard for determining whether an in-

court identification would be admissible in the wake of

& suggestive out-of-court identification, with the deletion

of “irreparable” it serves equally well as a standard for

10 NEIL v: BIGGERS

the admissibility of testimony concerning the out-of-

court identification itself.‘ It is the likelihood of mis-

identification which violates a defendant’s right to due

process, and it is this which was the basis of the exclu-

sion of evidence in Foster. Suggestive confrontations

are disapproved because they increase the likelihood of

misidentification, and unnecessarily suggestive ones are

condemned for the further reason that the increased

chance of misidentification is gratuitous. But as Stovall

makes clear, the admission of evidence of a showup with-

out more does not violate due process.

What is less clear from our cases is whether, as inti-

mated by the District Court, unnecessary suggestiveness

alone requires the exclusion of evidence.* While we are

inclined to agree with the courts below that the police

did not exhaust all possibilities in seeking persons phys-

‘ ically comparable to petitioner, we do not think that the

evidence must therefore be excluded. The purpose of a

strict rule ing evidence of unnecessarily suggestive

confrontations would be to deter the police from using

a less reliable ure where a more reliable one may

5 See Clemons v. United States, — U.S. App. D. C.—, 408 F. 2d

1230, 1250 (1968) (McGowan, J., for the court en banc), cert. denied,

394 U. 8. 964 (1969). In the present case, there has been contro-

versy, in our view irrelevant, over whether, as she testified at the

habeas corpus hearing, the victim actually made an in-court identi-

fication. While we think it evident from the many testimonial links

between her out-of-court identification and “the defendant” before

her in court that the answer is “yes,” we recognize that if the testi-

mony concerning the out-of-court identification was inadmissible,

the conviction must be overturned.

*The District Court stated:

“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 peti-

tioner was subjected.” Pet. App., p. 42.

NEIL v. BIGGERS 11

be available, not because in every instance the admission

of evidence of such a confrontation offends due process.

Clemons v. United States, — U.S. App. D. C. —, 408

F, 2d 1230, 1251 (1968) (Leventhal, J., concurring) ; cf.

Gilbert v. California, 388 U. S. 263, 273 (1963); Mapp

v. Ohio, 367 U. S. 643 (1961). Such a rule would have

no place in the present case, since both the confrontation

and the trial preceded Stovall v. Denno, supra, when we

first gave notice that the suggestiveness of confrontation

procedures was anything other than a matter to be argued

to the jury.

We turn, then, to the central question, whether under

the “totality of the circumstances” the identification was

reliable even though the confrontation procedure was

suggestive. As indicated by our cases, the factors to be

considered in evaluating the likelihood of misidentifica-

tion include the opportunity of the witness to view the

criminal at the time of the crime, the witness’ degree of

attention, the accuracy of the witness’ prior description

of the criminal, the level of certainty demonstrated by

the witness at the confrontation, and the length of time

between the crime and the confrontation. Applying

these factors, we disagree with the District Court’s

conclusion.

In part, as discussed above, we think the District

Court focused unduly on the relative reliability of a

lineup as opposed to a showup, the issue on which ex-

pert testimony was taken at the evidentiary hearing. .

It must be kept in mind also that the trial was con-

ducted before Stovall and that .therefore the incentive

was lacking for the parties to make a record at trial of

facts corroborating or undermining the identification.

The testimony was addressed to the jury, and the jury

apparently found the identification reliable. Some of

_ the State’s testimony at the federal evidentiary hearing

12 NEIL v. BIGGERS

may well have been self-serving in that it too neatly fit

the case law, but it surely does nothing to under-

mine the state record, which itself fully corroborated the

identification.

We find that the District Court’s conclusions on the

critical facts are unsupported by the record and clearly

erroneous. The victim spent a considerable period of

time with her assailant, up to half an hour, She was with

him under adequate artificial light in her house and under

a full moon outdoors, and at least twice, once in the

house and later in the woods, faced him directly and

intimately. She was no casual observer, but rather the

victim of one of the most personally humiliating of all

crimes.’ Her description to the police, which included the

assailant’s approximate age, height, weight, complexion,

skin texture, build, and voice, might not have satisfied

Proust but was more than ordinarily thorough. She had

“no doubt” that respondent was the person who raped

her. In the nature of the crime, there are rarely witnesses

to a rape other than the victim, who often has a limited

opportunity of observation. The victim here, a practical .

nurse by profession, had an unusual opportunity to ob-

serve and identify her assailant. She testified at the

habeas corpus hearing that there was something about

his face “I don’t think I could ever forget.” Pet. App.,

p. 128.

There was, to be sure, a lapse of seven months between

the rape and the confrontation.* This would be a seri-

ously negative factor in most cases. Here, however, the

T See United States ex rel. Phipps v. Follette, 428 F. 2d 912, 915-

916 (CA2) (Friendly, J.), cert. denied, 400 U. 8. 908 (1970).

* Respondent attaches some weight to the failure of the victim’s

daughter to identify him. Apart from the fact that this does not

bear directly on the’ reliability of her mother’s identification, the girl

was only 12 years old and had, as best we can tell, only # very

brief view of the assailant from across the room.

NEIL v. BIGGERS 13

testimony is undisputed that the victim made no pre-

vious identification at any of the showups, lineups, or

photographic showings. Her record for reliability was

thus a good one, as she had previously resisted. what-

ever suggestiveness inheres in a showup. Weighing all

the factors, we find no substantial likelihood of mis-

identification. The evidence was properly allowed to go

the jury.’

Affirmed in part, reversed in part, and remanded.

Mk. Justice MarsHAu took no part in the considera-

tion or decision of this case.

* Respondent’s habeas corpus petition raised a number of other

claims, including one challenging the legality of his detention at the

time he was viewed by the victim. The courts below did not address

these claims, nor do we.

SUPREME COURT OF THE UNITED STATES

No. 71-586

William 8. Neil, Warden,}On Writ of Certiorari to the

v. United States Court of Ap-

Archie Nathaniel Biggers.} peals for the Sixth Circuit.

[December 6, 1972]

Mk. Justice BRENNAN, with whom Mr. Justice Dove-

Las and Mr. Justice Stewart concur, concurring in part

~ and dissenting in part.

We granted certiorari in this case to determine whether

our affirmance by an equally divided Court of respond-

ent’s state conviction constitutes an actual adjudication

within the meaning of 28 U. 8S. C. § 2244 (c), and thus

bars subsequent consideration of the same issues on fed-

eral habeas corpus. The Court holds today that such an

affirmance does not bar further federal relief, and I fully

concur in that aspect of the Court’s opinion. Regret-

tably, however, the Court also addresses the merits and

delves into the factual background of the case to reverse

the District Court’s finding, upheld by the Court of Ap-

peals, that under the “totality of the circumstances,” the

pre-Stovall showup was so impermissibly suggestive as

to give rise to a substantial likelihood of misidentification.

This is an unjustified departure from our long-established

practice not to reverse findings of fact concurred in by

two lower courts unless shown to be clearly erroneous.

Bee, e. g., Blau v. Lehman, 368 U. S. 403, 408-409 (1962) ;

Faulkner v. Gibbs, 338 U. S. 267; 268 (1949); United

States v. Dickinson, 331 U. S. 745, 751 (1947); United

States vy. Commercial Credit Co., 286 U.S. 63, 67 (1932) ;

United States v. Chemical Foundation, 272 U. 8. 1, 14

(1926); Baker v. Schofield, 243 U. S. 114, 118 (1917);

Towson v. Moore, 173 U. 8. 17, 24 ( 1899) ; cf. Boulden v.

Holman, 394 U. S, 478, 480-481 (1969).

NEIL v. BIGGERS

As the Court recognizes, @ pre-Stovall identification

obtained as a result of an unnecessarily suggestive showup

may still be introduced in evidence if, under the “totality

of the circumstances,” the identification retains strong

indicia of reliability. After an extensive hearing and

careful review of the state court record, however, the

District Court found that, under the circumstances of

this case, there existed an intolerable risk of misidentifica-

tion. Moreover, in making this determination, the court

specifically found that “the complaining witness did not

get an opportunity to obtain a good view of the suspect

during the commission of the crime,” “the show-up con-

frontation was not conducted near the time of the alleged

crime, but, rather, some seven months after its com-

mission,” and the complaining witness was unable to

give “a good physical description of her assailant” to the

police. Pet. App., pp. 41-42. The Court of Appeals,

which conducted its own review of the record, upheld

the District Court’s findings in their entirety. Biggers v.

Neil, 448 F. 2d 91, 95 (CA6 1971).

Although this case would seem to fall squarely within

the bounds of the “two-court” rule, the Court seems

to suggest that the rule is “inapplicable here” because

“this is a habeas corpus case in which the facts are

contained primarily in the state court record (equally

available to us as to the federal courts below)... .”

Ante, at —-~——, n. 3. The “two-court” rule, how-

ever, rests upon more than mere deference to the trier

of fact who has a first-hand opportunity to observe the

testimony and to gauge the credibility of witnesses.

For the rule also serves as an indispensable judicial

“time-saver,” making it unnecessary for this Court to

waste scarce time and resources on minor factual ques-

tions which have already been |accorded| consideration

by two federal courts and | resolution is without

significance except to the parties immedi tely involved. |

NEIL v. BIGGERS 3

Thus, the “two-court” rule must logically apply even

where, as here, the lower courts’ findings of fact are

based primarily upon the state court record.

The Court argues further, however, that the rule is

irrelevant here because, in its view, “the dispute between

the parties is not so much over the elemental facts as

over the constitutional significance to be attached to

them.” Ante, at —, n. 3. I cannot agree. Even a

cursory examination of the Court’s opinion reveals that

its concern is not limited solely to the proper applica-

tion of legal principles but, rather, extends to an essen-

tially de novo inquiry into such “elemental facts” as

the nature of the victim’s opportunity to observe the

assailant and the type of description the victim gave

the police at the time of the crime. And although we

might reasonably disagree with the lower courts’ findings

as to such matters, the “two-court” rule wisely inhibits

us from cavalierly substituting. our own view of the

facts simply because we might adopt a different con-

struction of the evidence or resolve the ambiguities dif-

ferently. On the contrary, these findings are “final here

in the absence of very exceptional showing of error.”

Comstock v. Group of Institutional Investors, 335 U. S.

211, 214 (1948). The record before us is simply not

susceptible to such a showing and, indeed, the State

does not argue otherwise. I would therefore dismiss

the writ of certiorari as improvidently granted insofar

as it relates to Question 2 of the Questions Presented.