Biggers v. Tennessee Brief for Petitioner

    1st t h e

Bnpvmw (Hmtrt nf %  lUutr-ii Btutts
October Term, 1967 

No. 237

A r c h ie  N a t h a n ie l  B iggers,
Petitioner,

v.

S tate oe T e n n e s s e e ,
Respondent.

ON W R IT  OF CERTIO RA RI TO T H E  S U P R E M E  COURT OF T E N N E S S E E

BRIEF FOR PETITIONER

J ack  G reenberg
M ic h a e l  M eltsn er

10 Columbus Circle 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

A von N. W illia m s
Z. A lexander  L ooby 

Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner

J o h n  P. H owland  
11 Hillcrest Road 
Port Washington, New York

Of Counsel



I N D E X

PAGE

Opinion Below................................................................ 1

Jurisdiction ...................................................................  1

Constitutional Provisions Involved .........................   2

Questions Presented ......................    2

Statement ..................................................................    2

Summary of Argument .........................    6

A bgumejstt—

I. The Circumstances of Petitioner’s Pre-Trial 
Identification and Its Use as Evidence at Trial 
Deny Him Due Process of Law as Guaran­
teed by the Fourteenth Amendment ................ 8
A. The Failure of the Police to Hold a Lineup

Violates Due Process .................................  9
B. The Circumstance of the Identification and

Its Use at Trial Violate Due Process ........  13
II. Petitioner’s Bights Under the Fifth Amend­

ment Were Violated by the State’s Use at 
Trial of What He Was Compelled to Say at 
a Pretrial Identification ................      19

Conclusion' 26



11

PAGE
T able oe Cases

Arndstein v. McCarthy, 266 U.S. 34 (1924) .................  20

Boyd v. United States, 116 U.S. 616 (1886) .................  20

Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963) 17
Counselman v. Hitchcock, 142 U.S. 547 (1892) .......... 20

Davis v. North Carolina, 384 U.S. 737 (1966) .............. 16
Deluna v. United States, 308 F,2d 140 (5th Cir. 1962) 20

Escobedo v. Illinois, 378 U.S. 478 (1964) ..................... 9
Estes v. Texas, 381 U.S. 532 (1965) ............................ 14

Gallegas v. Colorado, 370 U.S. 52 (1962) ............ ........ 16
Garrity v. New Jersey, 385 U.S. 493 (1967) .............  20
In Re Gault, 387 U.S. 1 (1967) ...................................  16
Gilbert v. California, 388 U.S. 263 (1967) ..8, 9,10,12,16, 22
Griffin v. California, 380 U.S. 609 (1965) ....................  20
Grunewald v. United States, 353 U.S. 391 (1957) .... .. 21

Haley v. Ohio, 332 U.S. 596 (1948) ...............................  16
Hamilton v. Alabama, 368 U.S. 52 (1961) ..................... 9

King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962) .... 17

Malloy v. Hogan, 378 U.S. 1 (1964) ........... .............. . 20
Massiah v. United States, 377 U.S. 201 (1964) ..... . 9
Miranda v. Arizona, 384 U.S. 436 (1966) ..... ........9, 20, 25
Murphy v. Waterfront Commission, 378 U.S. 52 

(1964) .............. ................... ....................................20,24

Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966) ..... ....9,12
Pointer v. Texas, 380 U.S. 400 (1965) ..... ................. . 17



Ill

PAGE

Schmerber v. California, 384 U.S. 757 (1966) ..........20,21
Sheppard v. Maxwell, 384 U.S. 333 (1966) ..... -..........  14
Stovall v. Denno, 388 U.S. 293 (1967) ...... 6, 8, 9,10,11,13

United States v. Wade, 388 U.S. 218 (1967) ....7, 8, 9,10,12,
13,14,16,17,18,19, 20, 21, 

22, 23, 24, 26

Watts v. Indiana, 338 U.S. 49 (1949) ....................... . 25
White v. Maryland, 373 U.S. 59 (1963) ..................... 9

O t h e r  A u t h o r it ie s

Borchard, Convicting The Innocent .................. .... .....  17
Frankfurter, The Case of Sacco and Vanzetti.............  12
Griswold, The Fifth Amendment Today ..................... 21
2 Hawkins, Pleas of the Crown (46 §34) (8tli Ed. 

1824) ...................... ............. ......................................  25
McLuhan “Understanding Media” (Signet ed.) -.........  22
Wall, Eyewitness Identification in Criminal Cases ....9,10,

11,15
8 Wigmore, Evidence §2263 (McNaughton Rev. 1961) 20
Wigmore, Nemo Tenetur Seipsum Prodere, 5 Harv.

L. Rev. 71 (1891) ........................ ........................... - 20
Williams, Identification Parades, Crim. L. R. (1955) .... 11 
Williams, Proof of Guilt .............................................. 14



I n  t h e

(Enitrt of tiro lotted States
October Term, 1967 

No. 237

A r c h ie  N a t h a n ie l  B iggees,
Petitioner,

v.

S tate of T e n n e s s e e ,
Respondent.

ON W R IT  OF CERTIO RARI TO T H E  S U P R E M E  COU RT OF T E N N E S S E E

BRIEF FOR PETITIONER

O pinion Below

The opinion of the Supreme Court of Tennessee (R. 202-
06) is reported a t ----- - Tenn.----- , 411 S.W.2d 696 (1967).
The judgment of the Supreme Court of Tennessee (R. 207) 
and its order denying rehearing (R. 219) are unreported.

Jurisd iction

The judgment of the Supreme Court of Tennessee was 
entered on January 12, 1967 (R. 207). Rehearing was de­
nied March 1, 1967 (R. 219). Petition for writ of certiorari 
was filed April 1, 1967 and was granted June 12, 1967. 
The jurisdiction of this Court rests on 28 U.S.C. §1257(3), 
petitioner having asserted below and here the deprivation 
of rights secured by the Constitution of the United States.



2

Constitutional P rovisions Involved

This case involves the Fifth, Sixth and Fourteenth 
Amendments to the Constitution of the United States.

Q uestions Presented

To permit identification by the prosecutrix, the police 
compelled petitioner, a 16 year-old Negro boy, to repeat 
words spoken by her assailant during the offense seven 
months earlier. There was no lineup; petitioner was alone 
in their custody at the police station.

1. Was petitioner denied due process of law when con­
victed of rape solely on the basis of testimony of this 
pretrial identification.

2. Whether the state violated petitioner’s privilege 
against self-incrimination by compelling him to speak the 
words used by the criminal at a pre-trial identification and 
introducing the compelled statement as direct evidence 
against him at trial.

Statem ent

On the night of January 22, 1965, Mrs. Margaret Beamer, 
a 39-year old Negro woman, was raped by an intruder. 
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 (R. 9, 10). 
Mrs. Beamer’s attention was drawn to the attacker’s knife 
and she was unable to describe the rapist other than to 
state that he was large, had a youthful voice, soft skin, 
and “sort of bushy” hair (R. 14, 17, 18, 50). The record 
does not show whether she reported these characteristics



3

to the police immediately following the crime; only that 
she testified to identifying petitioner on the basis of them 
at a police station seven months later (R. 14, 17).

Hearing her mother shout, Mrs. Beamer’s 13-year old 
daughter ran into the hallway (R. 83). She approached 
within a foot of the intruder, whose face was turned 
toward her, before being ordered back into her bedroom 
(R. 90, 91). The intruder then took Mrs. Beamer out of 
the house through an unlit kitchen to a nearby patch of 
woods where he raped her. The events surrounding the 
crime lasted some 10 to 30 minutes (R. 26, 85). During 
the following seven months, the police requested Mrs. 
Beamer to look at police photographs on several occasions 
and although she identified the picture of one man as 
“having features” like the rapist, the case lay dormant 
(R. 15, 25, 38, 39, 50, 51, 64, 65, 74).

On August 17, 1965, Archie Nathaniel Biggers, a 16-year 
old Negro, was arrested at 1 :30 A.M. and allegedly identi­
fied by a white woman as the person who had attempted 
to rape her earlier that night (R. 196). An August 17th 
edition of the Nashville Tennessean, a morning newspaper, 
carried a front page story of the assault and arrest 
(R. 196). Biggers, although not named, was described 
as a “burly-16-year old Negro.” According to the article, 
he had been identified by the victim; the police were ques­
tioning 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 
Biggers entering jail and stated that he had confessed to 
attacking the white woman, Mrs. Carrie Silverman, that 
Mrs. Beamer had identified him as her attacker, and that 
two other attempted rape victims could not identify him. 
Biggers’ mother reportedly had retained an attorney the 
day he was arrested (R. 197, 46, 47). At trial, the State



4

initiated reference to newspapers accounts of Biggers’ ar­
rest in order to establish that Mrs. Beamer had identified 
Biggers before his photograph appeared on August 18th 
(R. 17). The record does not show whether Mrs. Beamer 
had seen the first story in the Tennessean published the 
morning of the 17th (R. 17, 24).

On the day of Biggers’ arrest the police went to Mrs. 
Beamer’s home and brought her to the police station, as 
one officer put it, to “look at a suspect” in one of the rooms 
in the detective division (R. 24, 25, 39, 65, 77, 78). The 
police brought Biggers into the adjoining hall and then 
to the doorway of the room in which the prosecutrix was 
seated (R. 40, 66, 80).1 Mrs. Beamer saw Biggers in the 
doorway in the presence of “quite a few”—at least five— 
policemen (R. 39, 48, 65, 73, 79). Neither his parents nor 
attorney had been notified of the identification. Mrs. 
Beamer asked the police to have Biggers 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.” 
(R. 18, 66, 68, 69, 78, 79). Only after she heard him speak 
the rapist’s words did Mrs. Beamer identify Archie Biggers 
as the man who had raped her (R. 17).2

1 After his arrest, early in the morning of August 17, 1965, Biggers 
was lodged in a juvenile detention facility. Later he was transferred to 
the custody of the police department in order to be confronted by Mrs. 
Beamer. At trial, a police officer was asked by what authority Biggers 
was removed from juvenile detention. He stated “Well, we had papers 
that he was ruled incorrigible which they signed out there, so that they 
could—” (R. 52). This statement should not be read to imply that the 
decision to release Biggers to the police on August 17th was reached 
after a judicial proceeding in the junvenile court, for Biggers was not 
remanded to the Sheriff of Davidson County, Tennessee, to be dealt with 
as an adult, until August 24, 1965.

2 One officer present testified that Mrs. Beamer identified Biggers before 
he spoke (R. 80), but Mrs. Beamer herself stated reliance on his voice 
for identification (R. 17). Another officer and petitioner also testified 
that she requested him to speak prior to naming him as the rapist (ft. 
66, 107, 108).



5

Petitioner was indicted for the rape of Mrs. Beamer on 
October 1, 1965 and tried two months later (R. 1, 6). At 
trial, the only evidence connecting him with the rape was 
Mrs. Beamer’s stationhouse identification. Her thirteen- 
year old daughter testified to what she saw but was unable 
to identify Biggers as the rapist (R. 83). On direct ex­
amination, Mrs. Beamer testified that she had identified 
Biggers at the police station on the basis of his general size, 
voice, and skin and hair texture but she did not identify 
Biggers in the courtroom. Biggers’ voice was described 
as that of an “immature youth,” who talked “soft” in 
a “medium pitched” voice (R. 17-19).

On direct examination four of the five police officers who 
were present at the pre-trial identification described Mrs. 
Beamer’s identification of Biggers at the police station 
(R. 39, 48, 66, 75). At one point petitioner’s counsel ob­
jected that this testimony served to bolster the impact of 
the identification on the jury but the objection was over­
ruled (R. 75, 76).3

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 (R. 107, 108). Biggers’ 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” (R. 116-74).

8 “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.” (K. 75).



6

In Ms summation, the prosecuting attorney characterized 
the issue in the case as one of identification (R. 177, 181). 
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 
accurate identification.4 On the basis of Mrs. Beamer’s 
identification, the only evidence 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 (R. 4, 193-195).5 On appeal, the 
Supreme Court of Tennessee rejected petitioner’s consti­
tutional claim that his identification was “so fundamentally 
unfair and oppressive as to invalidate all evidence flowing 
therefrom” (R. 200, 204-06).

SUMMARY OF ARGUMENT

I.
The police directed the attention of the witness to peti­

tioner by exhibiting him for identification alone while 
in their custody at a stationhouse. As recognized by this 
Court in Stovall v. Denno, 388 U.S. 293 (1967) presenting 
an accused for identification without a lineup is grossly 
suggestive, constituting a violation of due process absent 
imperative reasons for failing to hold a lineup not present

4 “After that case was concluded one of the Jurors came to me, he said, 
you know, Mr. Hollins, when I was in the Army, World War I—World 
War II, I was in the trenches and I looked up and saw a big German 
soldier, with a bayonet, standing over me. Somebody shot him and I  was 
saved. But he says you know if I  saw that soldier walking down the 
street today I would recognize him. And there’s something about the 
violence and terror of the situation that fixes these matters indelibly in 
a person’s mind. And if you don’t think that is true, then you acquit this 
defendant.” (R. 177).

D Although Biggers was originally sentenced to an institution for youth­
ful offenders, he has been placed in the Tennessee State prison, a facility 
for adults.



7

in this case. In addition, to use of such a “showup”, this 
case presents circumstances which unnecessarily prejudiced 
a fair trial. The witness was open to suggestive influences 
before the identification, for opportunity to observe the 
assailant was insufficient and the crime had occurred 
seven months earlier. She relied particularly on her 
memory of a voice. The police labelled petitioner a “sus­
pect” before showing him, made him speak the identical 
words used by the rapist, and presented him for identifi­
cation surrounded by policemen. His family and counsel 
were not present although petitioner was only 16 years 
old. At trial, the pre-trial identification was the only evi­
dence of guilt. In an attempt to bolster the identification 
before the jury, four policemen reiterated its circum­
stances. The victim’s daughter, however, could not identify 
petitioner and the victim did not attempt to identify him 
in the courtroom. By presenting petitioner in such a man­
ner as to encourage positive identification and by sole 
reliance on the tainted pre-trial identification, the state 
precluded a meaningful confrontation at trial.

II.
Petitioner was instructed by the police to speak the 

words of the rapist—“Shut up, or I ’ll kill you”—in order 
to enable the victim to identify him and evidence of what 
he said was introduced by the state against him at trial. 
Use of such evidence by the state constitutes compulsory 
self-accusation for it bolsters the identification and con­
verts the speech into a response which is essentially testi­
monial. As the Court recognized in United States v. Wade, 
388 U.S. 218, 223 (1967), it is one thing to compel speech 
for pre-trial identification purposes but quite another to 
use it to support conviction and punishment.

When an accused is compelled to speak the risk of in­
crimination is always high, but if the speech is admissible



8

at trial the state has an incentive to induce incrimination 
at an identification proceeding. When compelled speech is 
presented to a jury, incrimination may be supplied by the 
nature of the speech itself or by the person who repeats 
the testimony. The privilege against self-incrimination has 
been construed by this Court to protect against govern­
mental overbearing of a person’s will. As speech requires 
volitional cooperation, to permit government to compel it 
is to impair the sense of dignity and integrity which is at 
the heart of the Fifth Amendment.

A R G U M E N T

I.

The Circum stances o f  P etition er’s Pre-Trial Identifi­
cation and Its Use as Evidence at Trial D eny H im  D ue  
Process o f  Law as Guaranteed by the Fourteenth A m end­
m ent.

The decisions of this Court in United States v. Wade, 
388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 
(1967) holding pre-trial identification in absence of counsel 
violates the Sixth Amendment, would require reversal in 
this case but for the decision in Stovall v. Denno, 388 U.S. 
293 (1967), barring their retroactive effect.6 Like Wade 
and Gilbert, Biggers was denied the right to the assistance 
of his retained counsel by the police holding a pre-trial 
identification proceeding in his attorney’s absence.7 The

6 Stovall v. Denno held that “Wade and Gilbert affect only those cases 
and all future cases which involve confrontations for identification pur­
poses conducted in the absence of counsel after this date [June 12, 1967]” 
388 U.S. 293, 296. The Biggers identification took place on August 17, 
1965 (R. 19).

7 Identification in this ease was made before indictment, while the iden­
tifications in Wade and Gilbert were post-indictment. This difference is



9

Court remanded Wade to determine whether a subsequent 
in-court identification should be excluded as the tainted 
product of the lineup identification, while Gilbert excluded 
in-court testimony of the pre-trial identification per se. 
As petitioner was convicted on the testimony of the 
prosecutrix’s pre-trial identification at a showup (she did 
not attempt to identify him at trial) where petitioner was 
unrepresented by counsel, Biggers would be entitled under 
Gilbert to exclusion of the identification.8

A. T h e  F ailure o f  th e  Police to H o ld  a L in e u p  V iolates  
D ue Process.

The question, therefore, is that left open in Stovall v. 
Denno, 388 U.S. 293, 301, 302 (1967), whether the pre-trial 
confrontation between petitioner and the victim “was so 
unnecessarily suggestive and conducive to irreparable 
mistaken identification that [petitioner] was denied due 
process of law. This is a recognized ground of attack upon 
a conviction independent of any right to counsel claim. 
Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966).”

not a ground to distinguish the cases. This Court has long held that 
determination of the “critical stage,” when the right to counsel attaches, 
turns upon whether the accused’s right to a fair trial may be sacrificed 
or lost before trial due to the absence of counsel. United States v. Wade, 
388 U.S. 218, 224-227 (1967). No particular stage of the prosecution is 
the “critical stage.” See, e.g., Hamilton v. Alabama, 368 U.S. 52 (1961) 
(arraignment); White v. Maryland, 373 U.S. 59 (1963) (preliminary 
hearing); Massiah v. United States, 377 U.S. 201 (1964) (post indict­
ment, accused on bail); Escobedo v. Illinois, 378 U.S. 478 (1964) (pre­
indictment); see Miranda v. Arizona, 384 U.S. 436, 477 (1966). The 
“grave potential for prejudice, intentional or not, in the pre-trial [show­
up]” which is manifested throughout this case leaves no doubt that the 
pre-trial identification of Archie Biggers “was a critical stage of the 
prosecution at which he was ‘as much entitled to such aid [of counsel] 
. . .  as at the trial itself.’ ” United States v. Wade, supra, 3S8 U.S. at 
p. 227.

8 An identification of a single suspect, as distinguished from a lineup, 
will be denominated a “showup”, following the definition in Wall, Eye­
witness Identification in Criminal Cases, 27.



10

The accused in Stovall was identified without a lineup, 
a procedure of acknowledged suggestiveness: “The prac­
tice of showing suspects singly to persons for the purpose 
of identification, and not as part of a lineup, has been 
widely condemned” (388 U.S. at p. 302). Nevertheless, due 
process was not violated in Stovall solely because of exigent 
circumstances. The victim was in danger of death, and if 
an identification was to be made at all “an immediate hos­
pital confrontation was imperative” (Ibid.).

The extraordinary need for an immediate identification 
without a lineup present in Stovall is completely absent 
here. On the contrary, at the time of the identification, 
Biggers was in police custody on an unrelated charge and 
continuously available for identification. Similarly, Mrs. 
Beamer was, and had been for seven months, continuously 
available to identify possible suspects. Her health was 
unimpaired, and no other factors made an immediate iden­
tification by her without a lineup “imperative.” Held 
without exigent compelling circumstances, Biggers’ showup 
identification violated due process under the reasoning of 
Stovall v. Denno, supra.

United States v. Wade, 388 U.S. 218 (1967) and Gilbert 
v. California, 388 U.S. 263 (1967) found need of impartial 
and selective identification procedures, and thereby the 
need for counsel, even when a lineup is held in part because 
the reliability of any identification of a stranger is severely 
limited by normal human fallibilities of perception and 
memory. A showup, on the other hand, results in the maxi­
mization of suggestion that the suspect is the guilty party 
and suggestion is the “ ‘one factor which, more than any­
thing else, devastates memory and plays havoc with our 
best intended recollections * * ” 9 Suggestion is in large

9 Wall, Eyewitness Identification in Criminal Cases 26.



11

part the product of restricted selectivity offered the wit­
ness in the identification process. Instead of being forced to 
choose between several persons with different heights, 
weights, profiles and voices, Mrs. Beamer was confronted 
with a single individual whose suspected guilt the police 
communicated by presenting him alone and in custody. 
The witness is free to accept or reject this police judg­
ment, but not to choose. With good reason, therefore, the 
showup is labelled “the most grossly suggestive identifica­
tion procedure now or ever used by the police.” Wall, Eye­
witness Identification in Criminal Cases 28. See also, 
Stovall v. Denno, 388 U.S. 293, 302 n. 5 (1967).10

In identifying petitioner, Mrs. Beamer relied particularly 
on her recollection of a voice she had not heard in seven 
months, but selectivity is decreased even more when iden­
tification is by voice. An identification by physical ap­
pearance may rest upon various characteristics, one or a 
combination of which may be particularly striking, such 
as the shape of a nose or mouth, skin complexion, scars, 
or height and weight. Voice identification rests merely 
upon the tone and timbre of a voice, as well as an in­
dividual’s speech peculiarities.11 When few words are 
spoken and no special speech peculiarities are present, as 
in this case, only tone and timbre are left to provide iden­
tification. Selectivity is at the barest minimum; the prob­
ability of error is maximized. Biggers, moreover, spoke

10 See The opinion of the Australian Court quoted in Williams, Iden­
tification Parades, Crim. L. R., 526 (1955) : “The English courts treat 
it as indisputable that a witness, if shown the person to be identified 
singly and as the person whom the police have reason to suspect, will be 
much more likely, however fair and careful he may be, to assent to the 
view that the man he is shown corresponds to his recollection.”

11 Mrs. Beamer only stated that she identified petitioner’s voice because 
“he has the voice of an immature youth. I  have teenage boys and that 
was the first thing that made me think it was the boy” (R. 17). Thus, 
she relied on a voice characteristic common to boys in petitioner’s age 
group rather than a manner of speech particular to a single person.



12

softly during the identification (E. 17). It is difficult to 
believe the intruder spoke this way during the assault 
and rape. The unreliability of voice identifications as com­
pared to physical identifications, with the resultant in­
creased necessity for a lineup, was recognized by the 
Fourth Circuit in Palmer v. Peyton, 359 F.2d 199, 201-202 
(1966):

“Where the identification is by voice alone, the absence 
of some comparison involves grave danger of prejudice 
to the suspect, for as one noted commentator has 
pointed out: ‘[E]ven in ordinary circumstances one 
must be cautious and accept only with reserve what a 
witness pretends to have heard * # ”

This Court rigorously questioned the reliability of all 
identification testimony in United States v. Wade, supra, 
and quoted with approval Mr. Justice Frankfurter’s obser­
vation that: “The identification of strangers is proverbially 
untrustworthy. The hazards of such testimony are estab­
lished by a formidable number of instances in the records 
of English and American trials.” The Case of Sacco and 
Yanzetti 30. If this characterization applies to an identifi­
cation by lineup, where comparison and selectivity are 
greatest and suggestion minimal, it applies with far greater 
force to the showup in this case where Mrs. Beamer could 
only accept or reject police suspicion that Archie Biggers 
was the rapist, and where the showup identification was 
the sole evidence of guilt, see infra p. 17.

The holding in Stovall that absent unusual circumstances 
a show-up violates the due process rights of an accused is 
also soundly rooted in the policy adopted in United States 
v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 
388 U.S. 263 (1967). Those cases envision that “presence 
of counsel itself can often avert prejudice and assure a



13

meaningful confrontation at trial.” (388 U.S. at p. 236). 
Suggestion is to be prevented by an attorney calling the 
attention of the police to identification procedures which 
produce it and by proposing safeguards. For the attorney 
to play a practically meaningful role as insurer of the in­
tegrity of the pre-trial identification proceedings, practices 
such as the showup which result in undue suggestion must 
be condemned or counsel is reduced to the role of passive 
observer, unable to prevent unreliability and reduced to 
attempting to expose it after the fact at trial. If counsel 
is unable to assert that a procedure as destructive of 
reliability as the showup is unconstitutionally suggestive, 
it is difficult to see how he will be able to assist law en­
forcement as Wade presupposes “by preventing the in­
filtration of taint in the prosecution’s identification evi­
dence” (388 U.S. at p. 238).

B. T h e  C ircum stance o f  the  Id en tifica tio n  and  Its Use 
at. T ria l V iola te D ue Process.

This case, however, goes far beyond Stovall, supra. The 
record affirmatively shows that petitioner’s identification, 
and the use made of it by the state, denied him the fair 
trial guaranteed by the Fourteenth Amendment. The cir­
cumstances which denied Archie Biggers due process will 
be separately examined, but, of course, their prejudicial 
impact upon his trial is cumulative.

First. Prior to the police call “to look at a suspect” 
Mrs. Beamer was particularly open and susceptible to 
suggestive influence. The crime had occurred seven months 
earlier and had lasted at the most 30 minutes; inevitably 
the sharpness of her memory had faded.-.Mrs. Beamer, by 
her own admission at trial, was terrified by fear of violence 
to herself and children. When asked (B. 14) :

Q. “Are you able to describe this man other than 
seeing a butcher knife?”



14

She replied:
A. “No, other than I remember the blade being 

shiny.”

The crime took place at night. Mrs. Beamer was grabbed 
in an unlit hallway and marched through an unlit kitchen 
to railroad tracks and then to a wooded area. At trial, 
she gave only a general explanation of the characteristics 
which led her to identify petitioner. As the Court said in 
Wade, the danger of suggestion is “particularly grave 
when the witness’ opportunity for observation was insub­
stantial. . . .” (388 U.S. at p. 229).

Second. The police suggested that the petitioner was the 
rapist when they arrived at Mrs. Beamer’s home and asked 
her to go “look at a suspect.” Inherent in the word “sus­
pect” was the suggestion that the police had sufficient 
evidence linking the petitioner to the crime to warrant 
holding him at the police station for her identification. 
Thus the normal expectation of a witness that the guilty 
person will be present at the identification was substantially 
increased by the police. Cf. Williams, Proof of Guilt, 96.

Third. At the station house Mrs. Beamer first saw 
Archie Biggers in the custody of five police officers, all 
of whom remained present during the identification. The 
sheer number of officers, implying the importance of the 
petitioner as a “suspect”, may well have allayed any 
thought by the witness that this might not be “the man.” 12

12 On the morning of the identification the only morning newspaper in 
Nashville carried a front-page story of the attempted rape for which 
petitioner had been arrested. Biggers was not named, but he was described 
as a “burly 16 year-old Negro.” If  the prosecutrix read the article, which 
is not revealed in the record, the crime allegedly committed and the 
description of the rapist might well have influenced her identification of 
Biggers. The prejudicial effect of newspaper articles upon witnesses and 
jurors has been recognized by this Court. Cf., Sheppard v. Maxwell, 384 
TJ.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965).



15

On the other hand, the number of officers may have in­
creased her fear of contradicting the police as to the iden­
tity of a man regarded by them for reasons unknown to 
her as a “suspect.”

Fourth. When Mrs. Beamer did not identify Biggers by 
his physical appearance, the police required him to speak 
words spoken during the attack—“Shut up or I’ll kill 
you.”—and eventually his compelled speech was presented 
to the jury at trial. There is little that could have been 
more suggestive of his guilt. Mrs. Beamer had not indi­
cated that the rapist had particular speech mannerisms 
which required those words to be spoken, and even if he 
had had speech peculiarities he could have spoken other 
sentences of phrases containing each of these words. 
Whether or not a violation of petitioner’s Fifth Amend­
ment rights (see Argument II, infra) use of the rapist’s 
precise words was unnecessarily suggestive.

Wall has evaluated the latter two suggestive techniques 
used in this case. He states that “As bad as a show-up 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 suspect. * * * 
If this practice is not deemed suggestive 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 method adopted, for 
example, in the Sacco-Vanzetti case.” Eyewitness Iden­
tification in Criminal Cases 30.

Fifth. Archie Biggers was unprepared and unequipped 
to protect himself against an identification made unfair 
by suggestions to the witness. He was 16 years old, had a 
ninth grade education, and apparently no previous police



16

record.13 His immaturity, relative lack of education, and 
unfamiliarity with police procedures combined to make it 
difficult for him to intelligently safeguard himself against 
suggestive influence at the identification. Cf. Haley v. 
Ohio, 332 U.S. 596 (1948); Gallegas v. Colorado, 370 TJ.S. 
52 (1962); In Re Gault, 387 U.S. 1 (1967).14 This vulner­
ability to police procedures suggesting his guilt was fur­
ther increased by the failure to notify Biggers’ family 
of the identification despite the fact that his mother was 
available, the police having notified her earlier on August 
17th that her son was being held on an unrelated charge. 
While the nonretroactivity of the Sixth Amendment hold­
ing of Wade, supra and Gilbert, supra, precludes reversal 
solely on the basis of lack of counsel, the consequences 
of an identification proceeding held without an attorney 
present must be noted as they affect an accused’s right to 
a fair trial. Cf. Davis v. North Carolina, 384 U.S. 737, 
740, 741 (1966). Placed in an unfamiliar situation and 
seized by the natural fear of one whose liberty depends 
upon another, an accused is unlikely either to reconstruct 
completely or be capable of testifying to all the suggestive 
influences which would reflect on the witness’ impartiality 
and credibility. An accused as young and inexperienced 
as Archie Biggers is particularly affected by these dis­
abilities. We can never know if additional suggestive in­
fluences may have further tainted the identification in this 
case, but we do know that the procedure employed maxi-

13 A number of witnesses testified to Biggers’ good character and repu­
tation. When he took the stand, there was no attempt to impeach his 
credibility by introduction of a police record.

14 What the Court said in Haley applies: “What transpired would make 
us pause for careful inquiry if a mature man were involved. And when, 
as here, a mere child—an easy victim of the law—is before us, special 
care in scrutinizing the record must be used. * * * He cannot be judged by 
the more exacting standards of maturity. That which would leave a man 
cold and unimpressed can overawe and overwhelm a lad in his early teens.” 
(332 U.S. 596, 599-600).



17

mized potential suggestion without the protective presence 
of counsel to protect the right to cross-examine, Pointer v. 
Texas, 380 U.S. 400, 404 (1965).

Sixth. The pre-trial identification was exploited at trial 
by the State’s complete reliance on the tainted identifica­
tion. Although she came to within a foot of the assailant, 
Mrs. Beamer’s young daughter could not identify Biggers. 
Mrs. Beamer did not attempt an in-court identification. 
The pre-trial identification was offered by the state and 
was presented emphatically to the jury as the difference 
between guilt and innocence. No other evidence of guilt 
was presented although testimony elicited by the prosecu­
tion from four police officers as to what transpired at the 
identification made it appear to the jury that Mrs. Beamer’s 
testimony was corroborated,15 see United States v. Wade, 
388 U.S. at p. 247 (opinion of Mr. Justice Black). Ac­
cording to the prosecuting attorney, the excitement of the 
crime was proof of accuracy of the subsequent identifi­
cation. Professor Borchard’s studies show, however, “that 
the emotional balance of the victim or eyewitness is so 
disturbed by his extraordinary experience that his powers 
of perception became distorted and his identification is 
frequently most untrustworthy” Convicting the Innocent, 
XIII (1961). This is especially true in a rape prosecution 
where, as the Court has recognized, identification presents 
“a particularly hazard that a victim’s understandable out­
rage may excite vengeful or spiteful motives” United States 
v. Wade, 388 U.S. at p. 230.

Seventh. Without exception, the state could have em­
ployed procedures to safeguard the fairness of the identifi-

16 In Tennessee, it is not mandatory that testimony of a violated female 
be corroborated. Carroll v. State, 212 Tenn. 464, 370 S.W. 2d 523, 527 
(1963); King v. State, 210 Tenn. 150, 357 S.W. 2d 42, 45, 46 (1962).



18

cation and trial but did not do so. There was no practical 
impediment to a lineup. The witness need not have been 
told Biggers was a suspect. He did not have to repeat 
the precise language used by the criminal. Parents and 
counsel were available and could have been present. The 
number of officers at the identification was surely exces­
sive and their testimony at trial served only to prop up 
a thin case. No in-court identification was offered. It was 
unnecessary for the state to initiate reference to prejudi­
cial newspaper accounts of Biggers’ arrest and identifica­
tion or to permit the jury to learn that Biggers spoke 
the words of the criminal. Finally, it may have been good 
advocacy for the prosecuting attorney to tell the jury that 
“violence and terror . . . fixes these matters indelibly in 
a person’s mind” (E. 177) but it hardly speaks of dedica­
tion to “making the criminal trial a procedure for the 
ascertainment of the true facts surrounding the commis­
sion of the crime” United States v. Wade, 388 U.S. at 
p. 256 (opinion of Mr. Justice White).

The unfairness which began with the police labelling 
petitioner a “suspect”, extended through an identification 
replete with suggestion that he was the rapist from which 
he could not safeguard himself, and culminated at a trial in 
which the tainted identification was the sole basis of con­
viction. At every turn the police acted in such a way as to 
make a reliable identification impossible. Archie Biggers 
has been denied the fundamental fairness guaranteed him 
by the due process clause of the Fourteenth Amendment 
and his conviction should be reversed.



19

II.

P etition er’s Rights Under the F ifth  A m endm ent W ere 
Violated by the State’s Use at Trial o f  W hat H e Was 
Com pelled to Say at a Pretrial Identification.

When petitioner was identified by the victim he was 
being held at the police station in the custody of five offi­
cers. Neither his parents nor attorney was present. The 
police brought petitioner in Mrs. Beamer’s presence and 
required him to repeat the words spoken by the rapist 
at the time of the offense: “Shut up, or I ’ll kill you.” 
From the sound of these few words—spoken seven months 
earlier during disturbing events which lasted from 10 to 
30 minutes—Mrs. Beamer identified Archie Biggers as 
the man who had raped her. At trial, in response to ques­
tions asked by the prosecuting attorney, Mrs. Beamer and 
four police officers, all witnesses for the state, testified 
to the circumstances of the identification, including that 
petitioner said “Shut up, or I ’ll kill you.” Petitioner con­
tends that the State of Tennessee violated his privilege 
against self-incrimination by compelling him to speak words 
used by the criminal at a pre-trial identification and by 
introducing the compelled statement into evidence against 
him at trial to bolster the pretrial identification.

In United States v. Wade, 388 U.S. 218, 220 (1967), the 
defendant was required at the lineup to wear strips of 
tape such as allegedly worn by the robber and directed to 
say “something like ‘put the money in the bag,’ the words 
allegedly uttered by the robber.” Evidence of what Wade 
was compelled to say and do at the lineup was introduced 
at trial by his counsel on cross-examination. A Fifth 
Amendment claim was rejected, in part, on the ground 
that the government did not adduce evidence of what was 
said or done at the lineup as part of its proof of guilt:



20

Moreover, it deserves emphasis that this case presents 
no question of the admissibility in evidence of any­
thing Wade said or did at the lineup which implicated 
his privilege. The government offered no such evidence 
as part of its case, and what came out about the lineup 
proceedings on Wade’s cross-examination of the emr 
ployees involved no violation of Wade’s privilege. 
(388 U.S. at p. 223).

Petitioner submits that admission at trial of what he 
was compelled to say evokes “the spirit and history of 
the Fifth Amendment”, Schmerber v. California, 384 U.S. 
757, 764 (1966).16 What Mr. Justice Black said in Wade 
applies to use of petitioner’s speech: “I would reverse

16 Historically, there have been two views of the Fifth Amendment: 
one exemplified by Wigmore and one reflected by decisions of this Court. 
Wigmore’s view, based on his understanding- of the origins of the privi­
lege, is that it is “directed at the employment of legal process to extract 
from the person’s own lips an admission of guilt”, 8 Wigmore, Evidence 
§2263 (McNaughton Rev. 1961); see Schmerber v. California, 384 U.S. at 
p. 762 note 7. Central to his thesis, is the belief that only the guilty avail 
themselves of its protection and thus, it did not apply “when there was no 
direct coercion by the government and when there was no formal charge 
to which the unanswered questions relate.” Deluna v. United Stales, 308 
F.2d 140, 145 (5th Cir. 1962); Wigmore, Nemo Tenetur Seipsum Prodere, 
5 Harv. L. Rev. 71, 85 (1891). As Judge Wisdom put it in Deluna, supra, 
Wigmore’s “writings are an inexhaustible quarry of quotations apt for 
use against the policy of privilege.”

This Court, however, has never sat to enforce Wigmore on Evidence 
and its decisions emphatically reject a narrow or literal reading of the 
privilege or limitation of its protection to “direct coercion” or “formal 
charge.” Although the language of the Fifth Amendment certainly is 
susceptible to narrow reading the Court held that the Amendment pro­
tects against compulsory production of potentially incriminatory written 
records in “the great case” (Malloy v. Hogan, 378 U.S. 1, 9 (1964)) of 
Boyd v. United States, 116 U.S. 616 (1886); that its exercise is not limited 
to criminal proceedings, Counsel-man v. Hitchcock, 142 U.S. 547 (1892) ; 
Arndstein v. McCarthy, 266 U.S. 34 (1924); and applies to indirect com­
pulsion to testify, Griffin v. California, 380 U.S. 609 (1965) ; Garrity v. 
'New Jersey, 385 U.S. 493 (1967) ; to non-judicially compelled admissions, 
Murphy v. Waterfront Commission, 378 U.S. 52 (1964) and to police 
interrogation, Miranda v. Arizona, 384 U.S. 436 (1966). By holding it



21

Wade’s conviction without further ado,, had the prosecu­
tion at trial made use of his lineup identification either 
in place of courtroom identification or to bolster in a harm­
ful manner crucial courtroom identification” (388 TT.S. at 
p. 247). Certainly, nothing in Schmerber supra, or Wade 
supra, should deny petitioner the protection of the privilege. 
The former upheld the constitutionality of extraction of 
a blood sample because evidence of the test was neither 
“testimony nor evidence relating to some communicative 
act or writing,” but declined to adopt the Dean Wigmore’s 
formulation of the privilege or to endorse “past applica­
tions of the distinction between testimonial compulsion 
and real or physical evidence.” It was recognized that 
application of such a distinction would depend on the in­
criminatory circumstances of each evidentiary seizure:

“There will be many cases in which such a distinction 
[between testimonial communications and real or physi­
cal evidence] is not readily drawn. Some tests seem­
ingly directed to obtain ‘physical evidence’, for ex­
ample, lie detector tests measuring changes in body 
function during interrogation, may actually be di­
rected to eliciting responses which are essentially tes­
timonial. To compel a person to submit to testing in 
which an effort will be made to determine his guilt or

serves innocent as well as guilty, the Court has rejected a premise central 
to a restrictive conception of the privilege:

“ [RJeeent re-examination of the history and meaning of the Fifth 
Amendment has emphasized anew that one of the basic functions of 
the privilege is ‘to protect the innocent who otherwise might be 
ensnared by ambiguous circumstances.’ ” Harlan, J., Grunewald v. 
United States, 353 U.S. 391, 421 (1957).

Contrary to the Wigmore formulation, decisions of the Court have 
been more in keeping' with the view of the privilege Dean Griswold has 
expressed, that it is “one of the great landmarks in man’s struggle to make 
himself civilized,” and should be liberally construed. Griswold, the Fifth 
Amendment Today (Harv. Press, 1955), p. 7.



22

innocence on the basis of physiological responses, 
whether willed or not, is to evoke the spirit and history 
of the Fifth Amendment” (384 U.S. at p. 764).

Unlike petitioner’s case, the lineup statements in Wade 
were not introduced at trial by the government as proof 
of guilt but by defense counsel on cross-examination, a dis­
tinction emphasized by the Court.

Regardless of the purpose for which initially extracted, 
compelled speech used as evidence at trial is testimonial 
communication rather than real or physical evidence. The 
speech is presented as proof of guilt before the tribunal 
which decides to convict or to acquit. No record can ade­
quately reveal, no counsel can adequately guard against, 
the subtle incriminatory shading or emphasis which a wit­
ness may supply, wittingly or unwittingly, in repeating a 
defendant’s compelled statement, in this case the inflam­
matory words “Shut up or I’ll kill you.” 17 Even if the wit­
ness repeats the speech in a neutral, detached manner the 
jury cannot be expected to remain untouched by the fact 
that the defendant played the role of the criminal. Thus, 
the identification itself is bolstered by evidence supplied 
solely as a result of compulsion of an accused. Testimony 
of petitioner’s speech, especially when the words are those 
of the criminal, is “affirmative action which may not merely 
identify him, but tie him directly to the crime” in the 
eyes of the jury, Gilbert v. California, 388 U.S. 263, 291, 
292 (1967) (opinion of Mr. Justice Fortas).

Identification, by whatever method, is similar to and 
lias much the same legal effect as self-incrimination. This 
case illustrates that compelled speech whatever its initial

17 “There are not many ways of writing ‘tonight’ but Stanislavsky 
used to ask his young actors to pronounce and stress it fifty different 
ways while the audience wrote down the different shades of feeling and 
meaning expressed” McLuhan “Understanding Media” 82 (Signet ed.).



purpose opens an accused to the perils of incrimination. 
A sixteen year old boy with no criminal record was brought 
into the victim’s presence surrounded by policemen, with­
out the benefit of a lineup, counsel, or family, and was com­
pelled to utter, not some innocent phrase, but the exact 
words alleged by the victim to have been used by the rapist. 
These are circumstances calculated to induce self-accusa­
tion in the innocent-but-weak but “history teaches us that 
self-accusation is an unreliable instrument of detection, 
apt to inculpate the innocent-but-weak and to enable the 
guilty to escape” United States v. Wade, 388 U.S. at p. 261 
(1967) (opinion of Mr. Justice Fortas). The risk of in­
crimination affecting the trial is confined if the state is 
not permitted to rely on what was said or done at the 
lineup. On the other hand, if the state is able to profit at 
trial from speech at an identification proceeding, there is 
incentive to induce an incriminating response.

While compelled speech maximizes the risk of incrimina­
tion, use by the state of officially compelled speech at trial 
is substantially unlike other required acts which have been 
held beyond the scope of Fifth Amendment protection, 
e.g., compelling a defendant to stand for the purpose of 
visual identification, to submit to a simple blood test, to 
being fingerprinted or photographed. Such acts as these 
require only a minimum physical cooperation which is 
passive in nature and no act of will. Speech entails a 
volitional as well as physical exertion. “Had Wade been 
compelled to utter these or any other words in open court, 
it is plain that he would have been entitled to a new trial 
because of having been compelled to be a witness against 
himself.” 388 U.S. at p. 245 (Opinion of Mr. Justice 
Black). It is as incriminating, however, to permit another 
to repeat an accused’s compelled speech as to force an 
accused to speak before, the jury. If the state may compel 
speech for identification purposes and then employ it as



24

proof at trial through the mouth of one of its witnesses 
then the state is at liberty to compel an accused to speak 
the words of the criminal, or to otherwise act out the 
crime, before the jury. We do not believe that this Court 
will ever tolerate such a result because “Our history and 
tradition teach and command that an accused may stand 
mute” United States v. Wade, 388 U.S. at p. 260 (opinion 
of Mr. Justice Fortas).

The need for accurate pre-trial identification may sug­
gest that an accused be forced to speak, but the very 
holding of Wade that such practice does not violate the 
Fifth Amendment when used solely as aid to pre-trial 
identification surely renders it unnecessary to permit re­
enactment before judge and jury where it becomes direct 
proof of guilt supplied solely by the involuntary actions 
of an accused. This distinction, between compelling speech 
and using compelled speech as evidence to support con­
viction and punishment, is at the center of this Court’s 
decision in Murphy v. Waterfront Commission, 378 U.S. 
52 (1964); see also opinion of Mr. Justice White, 378 U.S. 
at pp. 100, 101.

It is petitioner’s position that use of his compelled speech 
at trial is use of testimony relating to a communicative act 
within the scope of the privilege. We do not hesitate, 
however, to challenge the sense of any potentially con­
trolling distinction between testimonial communication and 
real evidence for purposes of the Fifth Amendment. With 
deference, we think the roots of the Amendment are deeper. 
Its true scope protects against governmental overbearing 
of a person’s will. An individual has the right to be pro­
tected from coercion designed to make him do something 
controlled only by his will, which is the heart of a person’s 
being and the source of his individuality. To invade this 
sanctuary is to destroy the well-spring of his integrity and



25

dignity as a human being. These are values which the 
Fifth Amendment seeks to shield from governmental in­
trusion by “physical or moral compulsion,” and they apply 
full force to the volitional cooperation inherent in com­
pelled speech.

We recognize that the Court faces a continuing dilemma 
in construing the privilege because there is a natural ten­
sion between the privilege and the potentially incriminating 
nature of any criminal investigation. When a suspect is 
arrested, placed in a lineup, fingerprinted, photographed, 
the incriminating hammer is always cocked. On the other 
hand, restriction of the privilege to its narrow origin, 
as Wigmore would have it, would be as stultifying as car­
rying it to its logical end. But a construction of the priv­
ilege which turns solely on the application of a distinction 
between real evidence and testimonial communication fails 
to relate to the values the Fifth Amendment protects or its 
critical contemporary role as a protection of individual 
liberty. It was this recognization of the roots of the priv­
ilege in personal dignity that led to rejection of the Wig- 
more view in Schmerber. It would make the individual the 
“deluded instrument of his own conviction” in all too many 
cases, Mr. Justice Frankfurter in Watts v. Indiana, 338 
U.S. 49, 54 (1949) quoting from 2 Hawkins, Pleas of the 
Crown (46 §34) (8th Ed. 1824), and contravene the “respect 
a government—state or federal—must accord to the dignity 
and integrity of its citizens” Miranda v. Arizona, 384 U.S. 
436, 460 (1966).

It is degrading to require one against his will to act 
the role of any other person because to do so tampers 
drastically with personal identity. Indignity is intensified 
when one is forced to act the role of a criminal. The slight 
physical cooperation required in a blood test may not 
amount to unconstitutionally “forced cooperation by the



26

accused” but this Court should make clear that when com­
pelled speech is offered as evidence by the state in a court 
of law, and used to support a jury verdict, the result is 
compulsory self-accusation which the Fifth Amendment 
will not tolerate. United States v. Wade, 388 U.S. at p. 260, 
261 (opinion of Mr. Justice Fortas).

CONCLUSION

W herefore, P etition er Prays That the Judgm ent B e­
low  Be Reversed.

Respectfully submitted,

J ack  Greenberg
M ic h a e l  M eltsn er

10 Columbus Circle 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

A von N. W illia m s
Z. A lexander  L ooby 

Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner

J o h n  P. H owland 
11 Hillcrest Road 
Port Washington, New York

Of Counsel



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