NEIL v. BIGGERS
SUPREME COURT OF THE UNITED STATES
409 U.S. 188 (1972)
Powell, J., delivered the opinion of the Court, in which Burger, C. J.,
and White, Blackmun, and Rehnquist, JJ., joined. Brennan, J.,
filed an opinion concurring in part and dissenting in part, in which
Douglas and Stewart, JJ., joined, post, p. 201. Marshall, J.,
took no part in the consideration or decision of the case.
MR. JUSTICE POWELL delivered the
opinion of the Court.
In 1965, after a jury trial in a Tennessee court, respondent was
convicted of rape and was sentenced to 20 years' imprisonment.
The State's evidence consisted in part of testimony concerning a
station-house identification of respondent by the victim. The
Tennessee Supreme Court affirmed. 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) (MARSHALL, J., not
participating). Respondent then brought a federal habeas corpus
action raising several claims. In reply, petitioner 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 asserted denial of a Federal right which constitutes
ground for discharge in a habeas corpus proceeding, actually
adjudicated by the Supreme Court therein . . . ."
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 suggestive as to violate due
process. The Court of Appeals affirmed. 448 F.2d 91 (1971).
We granted certiorari 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 process. 405 U.S. 954 (1972).
The intended scope of the phrase "actually adjudicated by the Supreme
Court" must be determined by reference to the peculiarities of federal
court jurisdiction and the context in which § 2244 (c) was
enacted. Jurisdiction to hear state prisoner claims on habeas
corpus was first expressly conferred on the federal courts by the
Judiciary Act of 1867, c. 28, 14 Stat. 385. 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. Noia, 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 restrain open-ended relitigation, among them that a successive
habeas corpus application raising grounds rejected in a previous
application might be denied without reaching the merits. Salinger
v. Loisel, supra, 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 repetition of claims by state
prisoners without endangering the principle that each is entitled,
other limitations aside, to a redetermination of his federal claims by
a federal court on habeas corpus. With this in mind, the purpose of
§ 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 redetermination to which he is entitled. A
subsequent application for habeas corpus raising the same claims would
serve no valid purpose and would add unnecessarily to an already
overburdened system of criminal justice.
In this light, we review our cases explicating the disposition
"affirmed by an equally divided Court." On what was apparently the
first occasion of an equal division, The Antelope, 10 Wheat. 66 (1825),
the Court simply affirmed on the point of division without much
discussion. Id., 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, cannot
be settled; but the judgment is affirmed, the court being divided in
opinion upon it." Etting v. Bank of the United States, 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 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., 7 Wall. 107, 112 (1869).
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 majority position in this
Court, and accordingly conclude that the courts below properly reached
We proceed, then, to consider respondent's due process claim. As the
claim turns upon the facts, we must 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 kitchen:
"A. He 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. in No. 237, O. T. 1967, 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
railroad 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 minutes 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 assailant 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
complexion. 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 respondent, who was being detained 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 respondent's unusual physical description, they conducted a
The showup itself consisted of two detectives walking respondent past
the victim. At the victim's request, the police directed
respondent 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 he had spoken. n4 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 I -- 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
"A. When I identified him -- when I seen him in the courthouse
when I was took up to view the suspect." App. 127.
We must decide whether, as the courts below held, this identification
and the circumstances surrounding it failed to comport with due process
We have considered on four occasions the scope of due process
protection against the admission of evidence deriving from suggestive
identification procedures. In 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
conducive to irreparable mistaken identification that he was denied due
process of law." Id., 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 violated,
emphasizing that the critical condition of the injured 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:
"We hold that each case must be
considered on its own facts, and that convictions based on eyewitness
identification at trial following a pretrial identification by
photograph will be set aside on that ground only if the photographic
identification procedure 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 supportable, 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
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 another confrontation,
this time a lineup, the witness was able to muster a definite
identification. We held all of the identifications inadmissible,
observing that the identifications were "all but inevitable" under the
circumstances. Id., at 443.
In the most recent case of Coleman v. Alabama, 399 U.S. 1 (1970), we
held admissible an in-court identification 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
participants in the lineup before the police placed the participants in
a formal line. MR. 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
assault and not at all induced by the conduct of the lineup."
Id., at 5-6.
Some general guidelines emerge from these cases as to the relationship
between suggestiveness and misidentification. 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,
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 a suggestive out-of-court identification, with the deletion
of "irreparable" it serves equally well as a standard for the
admissibility of testimony concerning the out-of-court identification
itself. It is the likelihood of misidentification which violates a
defendant's right to due process, and it is this which was the basis of
the exclusion 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 without more does not violate due process.
What is less clear from our cases is whether, as intimated 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
physically comparable to respondent, we do not think that the evidence
must therefore be excluded. The purpose of a strict rule barring
evidence of unnecessarily suggestive confrontations would be to deter
the police from using a less reliable procedure where a more reliable
one may be available, and would not be based on the assumption that in
every instance the admission of evidence of such a confrontation
offends due process. Clemons v. United States, 133 U. S. App. D.
C. 27, 48, 408 F.2d 1230, 1251 (1968) (Leventhal, J., concurring);
cf. Gilbert v. California, 388 U.S. 263, 273 (1967); 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
misidentification include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of
attention, the accuracy of the witness' prior description of the
criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the
confrontation. Applying these factors, we disagree with the District
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 expert testimony was taken at the evidentiary hearing.
It must be kept in mind also that the trial was conducted 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 may well have been
self-serving in that it too neatly fit the case law, but it surely does
nothing to undermine the state record, which itself fully corroborated
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 observe
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." App. 127.
There was, to be sure, a lapse of seven months between the rape and the
confrontation. This would be a seriously negative factor in most
cases. Here, however, the testimony is undisputed that the victim
made no previous identification at any of the showups, lineups, or
photographic showings. Her record for reliability was thus a good
one, as she had previously resisted whatever suggestiveness inheres in
a showup. Weighing all the factors, we find no substantial likelihood
of misidentification. The evidence was properly allowed to go to the
Affirmed in part, reversed in part, and remanded.
MR. JUSTICE MARSHALL took no part in the consideration or decision of
MR. JUSTICE BRENNAN, with whom MR.
JUSTICE DOUGLAS 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 respondent's state conviction
constitutes an actual adjudication within the meaning of 28 U. S. C.
§ 2244 (c), and thus bars subsequent consideration of the
same issues on federal 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. Regrettably, 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 Appeals, 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. See, 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 v. Commercial
Credit Co., 286 U.S. 63, 67 (1932); United States v. Chemical
Foundation, 272 U.S. 1, 14 (1926); Baker v. Schofield, 243 U.S. 114,
118 (1917); Towson v. Moore, 173 U.S. 17, 24 (1899); cf. Boulden
v. Holman, 394 U.S. 478, 480-481 (1969).
As the Court recognizes, a 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 misidentification. 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
confrontation was not conducted near the time of the alleged crime,
but, rather, some seven months after its commission," and the
complaining witness was unable to give "a good physical description of
her assailant" to the police. App. 41-42. The Court of
Appeals, which conducted its own review of the record, upheld the
District Court's findings in their entirety. 448 F.2d 91, 95 (CA6
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 193
n. 3. The "two-court" rule, however, rests upon more than mere
deference to the trier of fact who has a firsthand 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 questions which have already been accorded
consideration by two federal courts and whose resolution is without
significance except to the parties immediately involved. 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
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 193 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 application of
legal principles but, rather, extends to an essentially 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 construction of the evidence or resolve the ambiguities
differently. 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 of such a showing and, indeed, the petitioner
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.