# Opinion — Neil v. Biggers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 188

## Text

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
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0075%3A10. Public record. Not legal advice.