Neil v. Biggers Appendix
Public Court Documents
February 28, 1972
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APPENDIX
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971
No. 71-586
W ILLIAM S. NEIL, WARDEN,
P etitioner,
v.
ARCHIE NATHANIEL BIGGERS,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR CERTIORARI FILED OCTOBER 27, 1971
CERTIORARI GRANTED FEBRUARY 28, 1972
INDEX
Page
In the United States D istr ict Court
Middle D istr ict of T ennessee
N ashville D ivision
N
A rch ie Nathaniel B iggers,
P etitioner,
► C ivil A ction No. 5120
Lake F . R u sse ll, W arden,
T ennessee State P en iten tiary ,
Respondent.
R elevant Docket E n t r i e s ................................................. A. 3
O rd er, July 1, 1968 ........................................................... A. 5
Petition fo r a W rit of H abeas C orpus and for
Leave to P roceed in F o rm a P auperis ,
July 1, 1968 .................................................................... A. 6
Motion to D ism iss , August 6, 1968 ......................... A. 17
O rder, May 12, 1969 .................................................... A. 19
A nsw er, May 28, 1969 .................................................. A. 21
Affidavit of Avon N. W illiam s, J r . , June 17, 1969 A. 24
A ffidavit of M rs. F lo ra M arie Ham m onds,
June 17, 1969 ............................................................... A. 26
Affidavit of A rch ie Nathaniel B iggers,
June 17, 1969 ............................................................... A. 29
O rd er, July 19, 1969 ...................................................... A. 31
O rder, A pril 17, 1970 .................................................. A. 32
Motion to R econsider, A pril 24, 1970 .................... A. 44
O rd er, May 4, 1970 ...................................................... A. 45
Notice of A ppeal, May 11, 1970 ................................ A. 52
i
INDEX (Continued)
Page
TRANSCRIPT OF PROCEEDINGS
A p p e a ra n c e s .....................................................................
Index .....................................................................................
P roceed ings— Opening Statem ent of Petitioner . .
Opening Statem ent of Respondent .
Testim ony of W illiam A. M cDaniel, J r .
D irec t E x a m in a tio n .................................................
C ro s s -E x a m in a t io n .................................................
R ed irec t E x a m in a tio n .............................................
Testim ony of D r. Irw in Pollack
D irec t Exam ination .................................................
C ro s s -E x a m in a t io n ...............................................
R ed irec t E x a m in a tio n ...........................................
Testim ony of F lo ra M arie Hammonds
D irec t E x a m in a tio n ...............................................
C ro s s -E x a m in a t io n ...............................................
Testim ony of M arg are t F ran c e s Beam er
D irec t E x a m in a tio n ...............................................
C ro s s -E x a m in a t io n ......... .... • • ...........................
Testim ony of Floyd Bailey
D irec t Exam ination ......................... .. • • ..............
C ro ss-E x am in atio n ............................................. ..
C urricu lum V ita , Irw in P o lla c k ......... ....................
A. 54
A. 54
A. 55
A. 62
A. 66
A. 77
A. 83
A. 89
A. 101
A. 118
A. 119
A. 121
A. 122
A. 128
A. 132
A. 134
A. 137
ii
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1971
No. 71-586
WILLIAM S. NEIL, WARDEN,
P etitioner ,
v.
ARCHIE NATHANIEL BIGGERS,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
PETITION FOR CERTIORARI FILED OCTOBER 27, 1971
CERTIORARI GRANTED FEBRUARY 28, 1971
A. 1
A. 2
Introductory Statement
May it P lease the C ourt:
By O rder of F eb ru a ry 28, 1971, th is C ourt g ran ted the
m otion of P etitioner to use the rec o rd in No. 237, O ctober
T e rm , 1967. That re c o rd may be found in Volume 51,
T ra n sc rip ts of R ecords and F ile C opies of B riefs, Nos. 232-
237, Suprem e C ourt of the United S ta tes, O ctober T erm ,
1967, in the lib ra ry of the United S tates Suprem e C ourt.
The tra n sc r ip t of the re c o rd used in 1967 toge ther with
the file copies of the b rie fs found in said Volume 51 is
com plete with the exception of the tra n s c r ip t of o ra l a rg u
m ent when th is case was heard January 15, 1968. That
o ra l argum ent has been tra n sc r ib e d and filed in th is cause
a s Appendix J (found in "Motion fo r Leave to Supplement
Appendix to Petition fo r W rit of C e r tio ra r i" ) (in blue c o v e r .)
A lso a p a rt of the rec o rd in No. 237, O ctober T erm ,
1967, was the o rd e r of th is C ourt g ran ting c e r t io r a r i
(Appendix H a t page A67 in the petition fo r c e r t io ra r i) ,
p e r cu riam opinion affirm ing the judgm ent below (Appendix G
in the petition fo r c e r t io ra r i , a t A61) and the o rd e r of th is
C ourt denying a petition to re h e a r (Appendix F to the p e t i
tion fo r c e r t io ra r i , a t A60).
This Appendix contains a ll the re levan t item s, opinions
and judgm ents except a s above sta ted and except the opinion
of the United States C ourt of A ppeals fo r the Sixth C ircu it
which is found in the appendix to the petition fo r w rit of
c e r t io ra r i a s Appendix A a t pages A1-A38. *
* The Sixth Circuit Opinion (Appendix A) and the transcript of oral argument
in 1968 (Appendix j) (in blue cover), have not been reprinted in this single
appendix in accordance with the Clerk's memorandum to counsel which ad
vises that these need not be reprinted where they were previously included
in a printed petition for certiorari.
A. 3
In The
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
\
ARCHIE NATHANIEL BIGGERS,
v.
P etitioner,
LAKE F . RUSSELL, W arden ► C ivil Action No.
T ennessee State Pen iten tiary
N ashville, T ennessee ,
5120
Respondent.
RELEVANT DOCKET ENTRIES
July 1, 1968 O rd er en te red by Judge W illiam
E. M iller d irec tin g C lerk to file petition fo r w rit of habeas
corpus in fo rm a p au p eris ; Copy to be se rv ed on the A t
to rney G eneral, S tate of T ennessee; Respondent to file
his answ er within the tim e allowed by law; respondent
w ill subm it affidavits in support of his position , and p e ti
tio n e r shall have 15 days th e re a f te r to file his own a ffi
davit in support of the allegations in his petition and to
propound w ritten in te rro g a to rie s to the resp o n d en t's a f
fiants . A fter the affidavits and in te rro g a to rie s have been
filed , the Court w ill de term ine what fu r th e r action is r e
q u ired .
August 6, 1968 Motion to D ism iss filed by
A. 4
Docket Entries
defendant, with Exhibits A & B. C ertifica te of se rv ice
attached .
May 12, 1969 O rd er Entered: R espondent's
Motion to D ism iss is denied; E videntiary H earing req u ired
to determ ine factual issu es ; C lerk to se t hearing; M erits
of P e titioner's contentions will be d e fe rred until a f te r h e a r
ing (Att. copy to P etitioner, to Hon. Avon W illiam s and
Hon. Jam es C. Dale).
May 28, 1969 Filed: ANSWER of Respondent,
c /s a ttached .
June 9, 1969 F iled: Brief of Petitioner,
c / s a ttached .
June 17, 1969 Filed: Affidavit of Avon N.
W illiam s, J r . on behalf of p la in tiff.
June 17, 1969 Filed: A ffidavit of M rs .
M arie Hammons - on behalf of p lain tiff.
June 17, 1969 Filed: Affidavit of A rchie
N athaniel B iggers, P etitioner.
July 29, 1969 O rd er Entered: E v identiary
h earin g - confined to issu es se t forth in o rd e r - to be se t
by C lerk . A ttested copy to a tto rneys of re c o rd and to
p e titio n e r, A rchie Nathaniel B iggers.
A pril 17, 1970 O rd er en te red g ran ting p e t i
tion fo r w rit of habeas corpus, and d ischarg ing the p e t i
tio n e r from custody a f te r the s ta te has had a reasonab le
tim e to re try him upon the sam e ch arg e . Copy to a t
torneys of rec o rd and to the p e titio n e r.
A pril 24, 1970 Motion to re c o n sid e r filed by
respondent, with b rie f in support th e reo f. C ertifica te of
s e rv ice a ttached .
May 4, 1970 O rd e r e n te red denying re sp o n d
en t's motion to re h e a r . Copy to a tto rneys of re c o rd .
May 11, 1970 Filed: R espondent's Notice of
Appeal from O rder en te red A pril 17. A tt. copy m ailed to
a tto rneys fo r Petitioner, Avon N. W illiam s and N ichael
M eltsner.
A. 5
In The United States D istr ict Court
Middle D istr ict of T ennessee, N ashville D ivision
[T itle O m itted in P rinting]
ORDER
(Received fo r Entry 2:30 P. M ., July 1, 1968)
The C lerk is d irec ted to file in form a pauperis the p e t i
tion of A rchie Nathaniel Biggers fo r w rit of habeas c o rp u s .
A copy of the petition and o rd e r will be forw arded to
the A ttorney G eneral, S tate of T en n essee , N ashville.
The Respondent is d irec ted to file his answ er within
the tim e allowed by law to show cause why the w rit of
habeas corpus should not is su e . Respondent w ill subm it
affidavits in support of his position on all factual is su es ,
and P etitioner shall have fifteen days th e re a f te r to file his
own affidavit in support of the a llegations in his petition
and to propound w ritten in te rro g a to rie s to the R espondent's
a ffian ts , o r to file answ ering affidavits of o ther a ffian ts.
A fter such affidavits and any in te rro g a to rie s have been
filed with the C lerk , the Court w ill de term ine what fu r th e r
action is req u ired .
/ s / Wm. E. M iller
UNITED STATES DISTRICT JUDGE
A. 6
[Title om itted in prin ting]
PETITION FOR A WRIT OF HABEAS CORPUS AND
FOR LEAVE TO PROCEED IN FORMA PAUPERIS
(F iled July 1, 1968)
TO: The H onorable W illiam E. M iller
United States D is tric t Judge
I (Jurisdiction)
This is an application fo r a w rit of habeas corpus to
re liev e the p e titio n er of re s tra in t under a conviction im
posed upon him by the State of T ennessee in violation of
the Constitution of the United S ta tes . A United S tates
D is tr ic t Court is au thorized to en terta in the application
by 28 U .S .C . §2241(a) (1964).
II (Petitioner)
(A) Petitioner is a citizen of the United States and is
a res id en t of the State of T ennessee , He is a pauper and
because of his poverty , he is unable to pay the
[fol. 2] cost of th is action and is unable to give sec u rity
fo r sam e . P etitioner is cu rre n tly im prisoned
a t the T ennessee State Pen iten tiary ,
(B) Petitioner, a N egro, was found guilty of rape and
sentenced to twenty y ears in p rison in the C rim inal C ourt
of Davidson County, T ennessee on D ecem ber 3, 1965.
His conviction and sentence w ere a ffirm ed by the T en n es
see Suprem e Court on January 12, 1967, 411 S .W .2 d 696.
Petition for re h e a rin g was denied on M arch 1, 1967. A
petition fo r a w rit of c e r t io ra r i in the Suprem e C ourt of
the United States was g ran ted and the judgm ent a ffirm ed
[fol. 1] In The United States District Court
Middle District of Tennessee, Nashville Division
Petition for Writ of Habeas Corpus, Etc.
by an equally divided court, U .S . 19 L, Ed. 2d
1267, 88 S. C t., on M arch 18, 1968. A petition fo r r e
hearing was denied A pril 22, 1968.
Ill (Respondent)
The respondent in th is action is Lake F. R ussell,
W arden of the T ennessee S tate P eniten tiary , who has c u s
tody of p e titio n e r.
IV (C ircum stances of the Offense, A rre s t,
Identification, and T ria l)
(A) On the night of January 22, 1965, M rs. M argare t
B eam er, a 3 9 -y ea r old Negro woman, was raped by an in
tru d e r . Brandishing a la rg e bu tcher knife the a ssa ilan t
en te red h e r house through a r e a r door, grabbed her from
behind in an unlit hallw ay and th rew h e r to the floo r.
M rs . B eam er’s attention was drawn to the a tta c k e r 's knife
and she was in fe a r fo r h e r life .
(B) H earing h e r m other shout, M rs. B eam er's 13-
y e a r old daughter ran into the hallw ay. She approached
within a foot of the in tru d er, whose face was tu rned to
w ard h er, before being o rd e red back into h e r bedroom .
The in tru d e r then took M rs. Beam er out of the house
through an unlit kitchen up a ra ilro a d em bank-
[fo l. 3] m ent to a nearby patch of woods th e re he raped
h e r . The events su rrounding the c rim e la sted
from 10 to a m axim um of 30 m in u tes .
(C) D uring the following seven m onths, the police r e
quested M rs . B eam er to look a t police photographs on
sev e ra l occasions and although she identified the p ic tu re
of one man who was not p e titio n e r as "having fe a tu re s"
like the ra p is t, the case lay dorm ant.
A. 7
A. 8
(D) During the evening of August 16, 1965 pe titio n er,
a 16-y ea r old Negro m ale, with no c rim in a l reco rd , was
receiv ing m edical trea tm en t at Hubbard Hospital in N ash
ville , T ennessee w here he had gone with his m other.
They w ere accosted by a police o fficer who m entioned that
a woman (M rs. S ilverm an) had been assau lted in the Bor
deaux a re a of N ashville, and sought to take Biggers to h e r
home fo r a ttem pted identification . On the o ffice r 's
p ro m ise to re tu rn p e titio n er home im m ediately th e re a f te r ,
h is m other re luc tan tly ag reed . The officer then took p e
titio n e r to M rs. S ilverm an 's home w here she attem pted
to but could not identify h im .
(E) Instead of taking p e titio n er hom e, the o fficer then
took him to the Juvenile Court Building w here he was kept
outside in the c a r and questioned by o fficers fo r som e tim e.
T h e re a fte r the o fficers charged him with the offense of
lo ite rin g , took him into the Juvenile C ourt Building, and
le ft him th e re with the night a ttendan t. By th is tim e it
was dawn. He s lep t th e re until m orning, when the police
picked him up and took him to the M etropolitan Jail. T h e re
they questioned him about two ho u rs , then put him in a c e ll.
(F) In the afternoon of August 17, p e titio n e r was brought
into the p resen ce of M rs. M arg are t B eam er who identified
him as the person that had raped h e r seven months e a r l ie r ,
P e titioner's m other and counsel re ta in ed by his m other
a fte r his a r r e s t w ere not notified of o r p re sen t
[fol. 4] a t the identification p roceed ing . The c irc u m
stances of the identification w ere as follows:
(G) On August 17th the police went to M rs. B eam er's
home and brought h e r to the police station , te lling h e r that
they wanted h e r to "look a t a su sp ec t" in one of the room s
in the detective division. The police brought p e titio n e r
into the adjoining hall and then to the doorway of the room
Petition for Writ of Habeas Corpus, Etc.
in which M rs, Beam er was sea ted . M rs. Beam er was
shown p e titio n er in the doorway in the p re sen ce of at
le a s t five po licem en . Although a lineup could eas ily have
been assem bled , p e titio n e r was p resen ted as the only s u s
pec t. M rs. Beam er asked the police to have p e titio n er
speak , and the police in s tru c ted him to rep eat words
spoken by the ra p is t a t the tim e of the offense: "Shut-up,
o r I 'l l k ill yo u ." Only a f te r she h eard him speak the
r a p is t 's words did M rs. Beam er identify A rchie Biggers
as the man who had raped h e r.
(H) An August 17th edition of the N ashville Tennes
sea n ,, c a r r ie d a front page s to ry of the Silverm an a ssau lt
and p e titio n e r 's a r r e s t . Although not nam ed, p e titioner
w as d esc rib ed th ere in as a "b u rly -1 6 -y ea r old N eg ro ."
A ccording to the a rtic le , he had been identified by the
v ictim ; the police w ere questioning him in connection
with s im ila r incidents and would confront him with v ictim s
of these e a r l ie r inc iden ts. An August 18th edition of the
p ap er showed a p ic tu re of p e titio n er en te rin g ja il and
s ta ted that he had confessed to a ttacking M rs. S ilverm an;
that M rs. M argare t Beam er had identified him as h e r a t
ta ck e r, and that two o ther a ttem pted rape v ic tim s could
not identify him .
(I) At p e titio n e r 's t r ia l the s ta te in itia ted re fe ren ce
to new spapers accounts of p e titio n e r 's a r r e s t in o rd e r to
e s tab lish that M rs. Beam er had identified p e titio n er b e
fo re his photograph appeared on August 18th . The t r ia l
re c o rd does not show w hether M rs . Beam er had seen the
f i r s t s to ry in the T ennessean published on the
[fol. 5] m orning of the 17th. On inform ation and b e
lie f, sh e saw that s to ry .
(J) Petitioner was indicted fo r the rape of M rs . B eam er
on O ctober 1, 1965 and tr ie d two months la te r . At tr ia l ,
A. 9
Petition for Writ of Habeas Corpus, Etc.
A. 10
the only evidence connecting him with the rape was M rs .
B eam er's identification. H er th ir te e n -y e a r old daughter
testified to what she saw but was unable to identify p e t i
tioner as the ra p is t.
(K) On d irec t exam ination four of the five police o f
f ic e rs who w ere p re sen t at the p r e - t r ia l identification d e
scrib ed M rs. B eam er's identification of Biggers a t the
police s ta tion . P e titio n er's counsel objected that this
testim ony serv ed to b o ls te r the im pact of the id en tifica
tion on the ju ry but the objection was o v e rru led .1
(L) Petitioner te stified in h is own behalf and denied
that he com m itted the act charged . He also told the ju ry
that the police d irec ted him to speak the words of the
ra p is t and that M rs. Beam er did not identify him until
a fte r he had spoken. P e titio n er's m other, s tep fa ther,
and seven friends and neighbors te s tif ied tha t p e titio n er
was an obedient and tru thful young man of good reputation
who had never before been in " tro u b le ."
(M) In his sum m ation, the p ro secu ting a tto rney c h a r
a c te riz e d the issu e in the case as one of identification .
He rep ea ted M rs. B eam er's identification testim ony and
re la ted a s to ry concerning a case that he had tr ied , the
point of which was tha t violence and te r r o r re su lt in a c
cura te identification:
[fol. 6] In many p a rts of our United S ta tes , G en tle
men of the Jury, a case of th is n a tu re would
1 Mr. Williams: -----that it is immaterial, — that I objected to on the
other— it is immaterial and incompetent. She has already testified with
regard to how identification — and that identification has to be weighed
by the Jury on the basis of what she has testified, not on the basis of what—
of this happened — a test to try to build it up by having about three or four
police officers come in here and say, Why, yeah, I saw her identify him.
That is not evidentiary, Your Honor.
Petition for Writ of Habeas Corpus, Etc.
A. 11
nev er go to t r ia l , and I'm s o r ry to say , i t 's a ll south
of the S tate of T ennessee , and tha t is because of th is
fine woman, M rs . B eam er's environm ent, econom ic
c ircu m stan ces , and situation , sh e 's not considered in
those s ta te s to have any m ore rig h ts than a dog and
h e r rep roductive organs — .
On the basis of M rs. B eam er's identification the only e v i
dence linking p e titio n er to the rap e , the ju ry found A rchie
Biggers guilty and he was sentenced to the State Vocational
T ra in in g School fo r Boys fo r twenty y e a rs .2
(N) The tr ia l of the case began on N ovem ber 29, 1965
and ended D ecem ber 3, 1965. The selection of a ju ry en
ta iled a v o ir d ire of well o v er one hundred ven irem en , and
a sp ec ia l ven ire of one hundred-eleven p ro sp ec tiv e ju ro rs
had to be subpoenaed by the Court fo r D ecem ber 1, 1965
in o rd e r to com plete the selec tion of the ju ry . The m a
jo rity of the venirem en adm itted on vo ir d ire that they had
read new spaper re p o rts about the a r r e s t of p e titio n e r on
sev e ra l charges of rap e in the F a ll of 1965. Some of
those sea ted on the ju ry which tr ie d the case adm itted
that they had read such news s to r ie s .
(O) At the tim e of t r i a l p e titio n e r had no re a l e s ta te
o r o ther valuable p ro p e rty , and was unem ployed, having
been confined to ja il s ince h is a r r e s t on August 17, 1965.
His m other, M rs. F lo ra M arie Ham m ons, likew ise had
and has no valuable p ro p e rty , and is and has been fo r
many y e a rs a dom estic se rv an t earn in g approxim ately
$37.50 p e r week. P etitioner has no fa th e r, having been
bom out of wedlock.
Petition for Writ o f Habeas Corpus, Etc.
Although petitioner was originally sentenced to an institution for youth
ful offenders, he has been placed in the Tennessee State prison, a facility
for adults.
(P) These facts re la tin g to the indigency of Biggers
w ere sta ted , in substance, to the tr ia l judge upon the h e a r
ing of the motion fo r new tr ia l in the case and also upon
the hearing of a p o s t- tr ia l motion seeking a r e -
[fol. 7] consideration of the tr ia l co u rt's action in deny
ing a s ta te -fu rn ish ed tra n s c r ip t of the evidence.
The v o ir d ire exam ination of p rospective ju ro rs alone
would have requ ired sev e ra l hundred pages to be t r a n
sc r ib ed . P etitioner and his m other w ere unable even to
pay fo r a tra n sc r ip t of the evidence itse lf , so that p e titio n
e r 's counsel was com pelled to advance paym ent fo r a
tra n sc r ip t of the evidence. Counsel w ere unable to a d
vance the sum n ecessa ry fo r tran sc rip tio n of the extensive
voir d ire and w ere th e re fo re obstructed in the p rep ara tio n
of the motion fo r new tr ia l and the appeal in th is case , and
forced to forego p resen ta tio n of all issu es of s ta te and fe d
e ra l constitu tional law a r is in g out of the selection of the
ju ry .
A. 12
Petition for Writ o f Habeas Corpus, Etc.
V (F irs t C laim )
By p resen tin g p e titio n e r fo r identification without a lin e
up and without notifying his p a ren ts o r re ta in ed counsel,
and by m aking him speak the words of the ra p is t in the
absence of c ircu m stan ces justify ing such a p ro ced u re ,
the State v iolated his righ ts under the Due P rocess C lause
of the Fourteenth A m endm ent. This "showup" m ethod
of p ro cedu re was so im p erm iss iv e ly suggestive as to give
r is e to a very substan tia l likelihood of i r re p a ra b le m is -
identification as shown, in p a r t, by the following c irc u m
stances: 1
(1) M rs. B eam er's identification of p e titio n er was un
co rrobo ra ted .
A. 13
Petition for Writ of Habeas Corpus, Etc.
(2) H er th irteen y ear old daughter was unable to iden
tify p e titio n e r.
[fol. 8] (3) M rs. B eam er's opportunity to observe
h e r a ssa ilan t has been conceded by the State to
have been " lim ited . " She never saw him in d ire c t light
and could only observe him fo r from 10 to 30 m inutes.
(4) P etitioner was d esc rib ed to M rs. Beam er as a
"suspect" by the po lice .
(5) He was com pelled to speak the in flam m atory words
u sed by the ra p is t without opportunity being afforded fo r
com parison .
(6) The gap between the c rim e and the identification
was seven m onths,
(7) The State tre a te d the ju ry in a m anner which su b
s tan tia lly im paired its capacity to ap p ra ise the id en tifica
tion objectively: new spapers w ere used as a forum fo r
g ro ss ly p re ju d ic ia l com m ent on the case ; the ju ry was
se lec ted from p erso n s exposed to th is com m ent; the
ju ro rs w ere rem inded of the harm ful s to r ie s by the p ro s e
cution o r v o ir d ire and at tr ia l; po lice o fficers w ere p e r
m itted to testify again and again to the fact of id en tifica
tion although it was not con troverted ; finally , the ju ry
was sub jected to a sum m ation which the Suprem e Court
of T ennessee c h a rac te riz ed as appealing to ra c ia l p re ju
dice and which tha t Court found to be e r r o r , albeit non-
re v e rs ib le .
VI (Second Claim )
By com pelling p e titio n e r to speak the words used by the
ra p is t and by in troducing his speech as evidence of p e t i
tio n e r 's guilt on d ire c t exam ination, the State denied p e ti
A. 14
Petition for Writ of Habeas Corpus, Etc.
t io n e r 's p riv ilege against se lf-incrim ina tion as guaranteed
by the Fifth and Fourteenth Amendments to the C onstitution,
VII (Third Claim )
By adm itting in evidence the identification of pe titio n er,
obtained as a re su lt of a p re - t r ia l confrontation
[fol. 9] held while p e titio n er was unlawfully a r re s te d ,
the s ta te violated righ ts guaranteed to him by
the Fourth and Fourteenth Am endm ents to the C onstitution,
VIII (Fourth Claim )
By refusing to req u ire the s ta te to defray the co sts of
p rep ara tio n of the tra n sc r ip t of evidence desp ite his plain
indigency the s ta te denied p e titio n e r 's rig h ts under the
Due P rocess C lause and Equal Protection C lause of the
C onstitution.
IX (Fifth C laim )
By affirm ing p e titio n e r 's conviction desp ite the in flam
m atory and p re ju d ic ia l re m a rk s of the p ro secu tin g a tto rney
in his sum m ation to the ju ry suggesting tha t because p ro s e
cu trix was a Negro woman he would not have been brought
to tr ia l in s ta te s south of the State of T ennessee and r e
lating h e r rep roductive organs to those of a dog, T en n es
see v iolated the Due P rocess and Equal P rotection C lauses
of the Fourteenth Am endm ent. This argum ent was m an i
festly im p ro p er and calcu lated to unduly inflam e and p re ju
dice the ju ry and unduly m otivate its conviction of defend
ant on bases o ther than evidence in troduced in the case
and on ra c ia l grounds.
A. 15
Petition for Writ of Habeas Corpus, Etc.
X (Sixth C laim )
The to ta lity of c ircu m stan ces surrounding p e titio n e rs
conviction especially , that th e re was absolutely no e v i
dence connecting defendant with the offense except the in
su b stan tia l identification m ade by the p ro secu tr ix and the
p re ju d ic ia l evidence to which the ju ry was exposed violated
p e titio n e r 's rig h t to a fa ir t r ia l as p ro tec ted by the Due
P rocess C lause of the Fourteenth Am endm ent.
[fol. 10] XI
P etitioner has exhausted all availab le s ta te rem ed ies
and no previous petition fo r w rit of habeas corpus has
been filed in th is m a tte r .
W HEREFORE, p e titio n er respec tfu lly req u ests :
1) T hat a w rit of habeas corpus be d irec ted to r e
spondent;
2) That respondent be re q u ire d to appear and answ er
the a llegations of th is petition;
3) T hat p e titio n er be accorded an ev iden tiary hearing
on the allegations of th is petition;
4) That a fte r a full and com plete h earin g p e titioner
be re liev ed of the unconstitu tional conviction and sentence
im posed upon him;
5) T hat p e titio n er be allow ed such o th er, fu r th e r and
a lte rn a tiv e re lie f as m ay seem ju s t, equitable and p ro p e r
under the c ircu m stan ces ;
6) That p e titio n e r be allowed to file th is petition w ith
out p re -p ay m en t of cost and that th is p roceed ing be allowed
in form a pauperis .
A. 16
D a te d : ...............................................
Respectfully subm itted ,
AVON N . WILLIAMS
C harlotte a t Fourth
N ashville, T ennessee
JACK GREENBERG
MICHAEL MELTSNER
10 Columbus C irc le
New York, New York 10019
ANTHONY G. AMSTERDAM
3400 Chestnut S tree t
Philadelphia, Pa, 19104
A ttorneys fo r Petitioner
V E R I F I C A T I O N
State of T ennessee )
) SS,
County of Davidson )
A rchie N athaniel Biggers being f i r s t duly sw orn upon
oath according to law, deposes and says that he has read
the foregoing petition , and that he knows the contents
thereof to be tru e except as to such m a tte rs as a r e s ta ted
upon inform ation and belief and these he v e rily be lieves
to be tru e and that he believes he is en titled to the re lie f
sought th e re in .
/ s / A rchie N athaniel Biggers
Sworn to and subscribed before me th is
18th day of June, 1968
/ s / S ignature Illegible
N otary Public
Petition for Writ of Habeas Corpus, Etc.
A. 17
[Title om itted in prin ting]
MOTION TO DISMISS
(F iled August 6, 1968)
The p e titio n er was convicted in Davidson County for
the offense of rap e on D ecem ber 3, 1965 and received a
tw enty (20) y ear sen tence.
C ertified copies of the technical re c o rd and b ill of ex
ceptions a re attached h ere to as Exhibits A and B re s p e c
tively .
This judgm ent of conviction was duly appealed to the
T ennessee Suprem e Court and was confirm ed by tha t
C ourt in the re p o rte d decision of Biggers v. State, 219
Tenn. 553, 411 S . W .2d 696 (1967). The United States
Suprem e C ourt g ran ted c e r t io ra r i and affirm ed by an
equally divided co u rt. Biggers v. State o f Tennessee ,
390 U .S . 404 (1968).
[fol. 2] The c ru x of the in stan t petition is that the
p e titio n e r was denied his F ifth , Sixth and F o u r
teen th Am endm ent righ ts reg a rd in g the c ircu m stan ces of
h is identification by the v ic tim . This is su e has been
fully considered and decided ad v erse ly to the p e titioner
by both the T ennessee Suprem e Court and the Suprem e
C ourt of the United S ta te s .
It is fu r th e r subm itted that the p e titio n e r’s la s t th ree
contentions, under the facts and c ircu m stan ces of the in
stan t case , sim ply do not r is e to the dignity of a denial of
constitu tional due p ro c e ss . F o r the foregoing rea so n s ,
the respondent resp ec tfu lly moves that the petition fo r
w rit of habeas corpus filed in th is c a se be d ism issed and
denied.
[fol. 1] in The United States District Court
Middle District of Tennessee, Nashville Division
A. 18
Motion to Dismiss
/ s / David W. McMackin
DAVID W. McMACKIN,
A ssis tan t A ttorney G eneral,
Suprem e Court Building,
N ashville, T ennessee.
[C ertifica te of Serv ice Om itted]
A. 19
[Title om itted in prin ting]
ORDER
(Received fo r Entry 4:15 P . M. , May 12, 1969)
This action involves a motion by the respondent to d is
m iss the petition for w rit of habeas corpus filed by Archie
N athaniel B iggers . The p e titio n e r was convicted of rape
in the C rim inal Court of Davidson County, T ennessee, in
1965, The judgm ent was affirm ed by the Suprem e Court
of T ennessee and then by an equally divided Suprem e Court
of the United S tates e a r ly in 1968. Biggers has now p e ti
tioned the Court fo r a hearing on his w rit of habeas corpus,
p u rsu an t to 28 U.S, C. §2241.
Respondent m ain tains that the constitu tional questions
here ra ise d by the p e titio n er have been fully considered
and decided adverse ly to him by the United S tates Suprem e
C ourt, It is the position of the respondent that the Court
should not, th e re fo re , red e te rm in e the sam e is su e s .
Though the p re sen t case has been argued before the
Suprem e C ourt, the decision of that Court is without fo rce
as p reced en t. When the Suprem e C ourt is
[fol. 2] equally divided as to the outcome of a c ase , the
judgm ent is au tom atically a ffirm ed without
opinion. Etting v. Bank of the United S ta tes , 24 U.S. 59
(1826). Had th e re been a m ore conclusive decision r e
gard ing the legal questions in the p re sen t c ase , the Court
could e as ily decline any fu r th e r rev iew . T h e re would be
li t t le reason fo r the Court to re h e a r argum ents p rev iously
re je c te d by the h ighest jud icial au tho rity . But the Suprem e
C ourt did not se ttle the m e rits of this case , and affirm ed
only through an equal sp lit in opinion. The C ourt th e r e
fo re concludes that it is not p recluded from hearing ev i-
[fol. 1] In The United States District Court
Middle District of Tennessee, Nashville Division
Order, 5 /12/69
dence on the p e titio n e r 's a llegations, and the responden t's
motion to d ism iss is hereby denied.
The Court being of the opinion that an evidentiary h e a r
ing is req u ired to determ ine the factual issu es in this
cause, it is ORDERED that a hearin g be se t by the C lerk
a t the e a r lie s t tim e consonant with the C ourt C alendar.
Any analysis of the m erits of the p e titio n e r 's contentions
will be de fe rred until a fte r the ev iden tiary hearing .
/ s / Wm. E. M iller
UNITED STATES DISTRICT JUDGE
A. 20
A. 21
[T itle om itted in prin ting]
ANSWER
(F iled May 28, 1969)
The Respondent, Lake F , R ussell, W arden, T ennessee
S tate P en iten tiary , fo r answ er to the Petition fo r a w rit of
habeas co rpus, filed against him in the above cause, says:
I .
Respondent adm its tha t he is the duly appointed and
qualified w arden of the T ennessee State Penitentiary at
N ashville, T ennessee , and that Petitioner, A rchie
N athaniel B iggers, is p re sen tly there in confined, having
been convicted of the c rim e of rape in the C rim inal Court
of Davidson County, T ennessee , on D ecem ber 3, 1965,
and having been sentenced to a te rm of twenty (20) y ears
in p riso n . P e titio n e r's conviction was affirm ed by the
T ennessee Suprem e Court on January 12, 1967, the opinion
of such Court appearing in 411 S.W„2d 696. Subsequent
to the denial by the T ennessee Suprem e C ourt of a Petition
fo r reh ea rin g , a Petition fo r a w rit of c e r t io ra r i was
gran ted by the Suprem e C ourt of the United S tates and the
judgm ent of the T ennessee Suprem e C ourt a ffirm ed by an
equally divided C ourt, 19 L. Ed. 2d 1267, on M arch 18,
1968, a f te r which decision a Petition fo r re h ea rin g was
denied.
[fo l. 2] II.
Respondent denies that any righ ts of P etitioner w ere
v iolated by the p ro ced u res em ployed by the M etropolitan
Police D epartm ent in p re sen tin g P etitioner, then a su sp ec t,
to the v ictim of his c r im e . P etitioner h e re seeks to attack
[fol. 1] In The United States District Court
Middle District of Tennessee, Nashville Division
Answer of Warden
the sufficiency of the identification evidence, a m a tte r not
appropria te fo r inquiry on Petition fo r w rit of habeas co rp u s.
III.
Respondent denies that P e titioner's p riv ileg e against
se lf-incrim ina tion was in any way violated by his being
asked to speak the words used by the ra p is t, and R espond
ent fu rth e r denies that "such speech" was in troduced on
d ire c t exam ination with the exception of the v ic tim 's t e s
tifying as to the words that the ra p is t spoke.
IV.
Respondent denies that the re fu sa l of the tr ia l judge to
req u ire the State to defray the cost of p rep ara tio n of the
tra n sc r ip t of evidence in any way denied any rig h t of P e ti
tio n e r since a hearing was held and it was determ ined
that Petitioner was not an indigent.
V.
Respondent denies that any rig h t of P etitioner was v io
la ted by alleged in flam m atory and p re jud ic ia l rem ark s
m ade by the p ro secu ting a tto rney since such re m a rk s w ere
im m ediately objected to by defense counsel, the tr ia l judge
just as im m ediately susta ined the objection, and the p ro s e
cuting atto rney forthw ith abandoned that line of com m ent.
VI.
Respondent denies that P etitioner was denied a fa ir
tr ia l and again would point out to the C ourt that
[fol. 3] the en tire th ru s t of the petition fo r habeas corpus
filed herein is an attack upon the sufficiency of
the evidence adduced a t the tr ia l of P etitioner.
A. 22
Answer of Warden
A. 23
VII.
Respondent adm its that P etitioner has exhausted all
availab le s ta te rem ed ies but subm its to the Court that for
the reaso n s s ta ted in the motion to d ism iss hereinbefore
filed that the petition fo r w rit of habeas corpus should be
d ism issed .
Respondent fu rth e r denies generally all things not h e r e
inbefore spec ifica lly denied and having fully answ ered asks
the Court to d ism iss the petition fo r habeas corpus and to
req u ire the Petitioner to com plete the se rv ice of his tim e.
/ s / Jam es C. Dale, III
Jam es C. Dale, III
Special Counsel
S tate of T ennessee
709 N ashville Bank & T ru s t Bldg.
N ashville, T ennessee 37201
[C ertifica te of S erv ice O m itted]
A. 24
[Title om itted in printing]
AFFIDAVIT OF AVON N. WILLIAMS, JR.
(F iled June 17, 1969)
STATE OF TENNESSEE
DAVIDSON COUNTY
Avon N. W illiam s, J r . , a f te r being duly sworn a c c o rd
ing to law, deposes and says:
That deponent is one of the counsel of re c o rd for the
pe titio n er, A rchie N athaniel B iggers, in the above case
and is a m em ber of the Bar of the State of M assachusetts
and T ennessee, the United States D is tr ic t C ourts fo r the
E aste rn , Middle and W estern D is tric ts of T ennessee , the
United States Court of Appeals fo r the Sixth C ircu it, and
the Suprem e Court of the United S ta tes , and has been
p rac tic in g law yer in the State of T ennessee since 1948.
That the docum ent attached h ere to m arked Exhibit "A"
is a tru e and c o rre c t copy of the tra n s c r ip t of the rec o rd
in the above case filed in the Suprem e C ourt of the United
States during its O ctober T e rm , 1967, as C ase No. 237
on W rit of C e r tio ra r i to the Suprem e Court of T ennessee,
Middle D ivision, and that said tra n s c r ip t of the rec o rd
contains a tru e and c o rre c t tra n s c r ip t of the rec o rd of
t r i a l in the above case before the C rim inal Court of D avid
son County, T ennessee , D ivision I, and of the proceedings
on appeal in the Suprem e Court of T enn essee . That the
deponent has exam ined the p e titio n e r 's personnel rec o rd
in the Juvenile C ourt of Davidson County, T enn essee , and
that the sa id re c o rd shows he was a r re s te d at 5:25 A.M.
8-17-65 on a technical charge of lo tte rin g issued from the
Juvenile Court a f te r (according to the affidavits of M rs .
[fol. 1] In The United States District Court
Middle District of Tennessee, Nashville Division
A. 25
Affidavit of Avon N. Williams, Jr.
F lo ra M arie Hammonds and p e titio n er) having been seized
about 11:00 P.M, at Hubbard H ospital by M etropolitan D e
te c tiv es , subm itted to M rs. C a rr ie B. S ilverm an for an
unsuccessfu l identification , and questioned at
[fol. 2] som e length and fo r sev e ra l hours in a c a r ou t
side the Juvenile C ourt Building in the ea rly
m orning hours of sa id day, before being turned over to
the Juvenile Court at 5:25 A. M.
FURTHER DEPONENT SAITH NOT.
/ s / Avon N. W illiam s, J r .
Sworn to and su b scrib ed before me
th is 16th day of June, 1969.
/ s / M rs. Mavis W. Donnelly
N otary Public
C om m ission E xp ires: 7 -29-69
A. 26
[Title om itted in prin ting]
AFFIDAVIT OF
MRS. FLORA MARIE HAMMONDS
(F iled June 17, 1969)
STATE OF TENNESSEE
DAVIDSON COUNTY
M rs. F lo ra M arie Hammonds, a fte r being duly sw orn
according to law, deposes and says:
That she is 38 y ears of age and re s id e s a t 2106-A
Scovel S tree t, N ashville, T ennessee, and is the m other
of A rchie Nathaniel B iggers, the p e titio n er in the above
c ase . On 16 August 1965 sa id p e titio n e r, then a 16 y e a r
old child , a rr iv e d home at approxim ately 10:00 P.M. with
a cut on his a r m . The deponent took him to Hubbard
H ospital, N ashville, T ennessee, fo r trea tm en t of sam e
reach ing the hospita l a t about 10:30 P. M. Upon h e r a r
r iv a l, she noticed M etropolitan Police w ere a lready th e re
in connection with ano ther c a se . A Negro detective in
qu ired how p e titioner got his a rm cut. The p e titio n e r
then told the detective about the dog chasing incident at
18th and Scovel w herein he fe ll and h u rt his a rm . The
N egro detec tive asked deponent fo r p e rm issio n to take
p e titio n er back to 18th and Scovel at that tim e . Deponent
ag reed to th is upon the d e tec tiv e ’s p ro m ise to b rin g the
p e titio n er home im m ediately a fte rw ard . Deponent then
went home and, when the policem an did not re tu rn the
p e titio n e r hom e, telephoned the M etropolitan Police S ta
tion w here the Police personnel to whom she talked seem ed
to know nothing about the case . F inally , about 2:00 o r
3:00 A . M . , 17 August 1965, being ex trem ely concerned,
[fol. 1] In The United States District Court
Middle District of Tennessee, Nashville Division
Affidavit of Mrs. Flora Marie Hammonds
deponent went to the M etropolitan Police Station and was
th e re advised by the Police that p e titioner was ac ro ss
town at the Juvenile Court Building, 2nd and Linds ley,
N ashville, T enn essee . She im m ediately went to the
Juvenile Court Building w here she found the p e titioner in
the custody of M etropolitan Police O fficers who refused
to re le a se the p e titio n er to his p a ren t, the deponent, a l
though to the b e st of the p e titio n e r’s knowledge,
[fol. 2] sa id police o fficers had no w arran t fo r the p e t i
tio n e r 's a r r e s t o r detention at that tim e . The
police officers advised deponent that p e titioner had sta ted
he wanted to take a lie d e tec to r te s t the next m orning b e
cause he had nothing to h ide. L a te r that m orning, 17
August 1965, deponent was telephoned by the M etropolitan
Police and requested to com e down and take p e titio n er to
a S tate building fo r the lie de tec to r te s t . She a rriv e d at
the Juvenile C ourt Building about 8:00 A. M. that m orning
to find that the M etropolitan Police had a lread y taken the
boy from the Juvenile Court Building a c ro ss town to the
M etropolitan Police Station. At th is tim e, deponent te le
phoned and engaged M r. Z . A lexander Looby as atto rney
fo r the p e titio n e r. M r. Looby advised h e r not to have
the child subm it to a lie de tec to r te s t . Deponent then
im m ediately sta ted to the M etropolitan Police that p e titio n e r
was not to have a lie d e tec to r te s t on advice of his counsel
and that the p e titio n e r was being rep re sen ted by M r. Looby.
L a te r that m orning, deponent received a phone ca ll from
M r. Looby advising h e r to re tu rn to Juvenile C ourt and
pick up the p e titio n e r s in ce M r. Looby had been inform ed
the only charge against the child was a w a rran t fo r lo tte r -
ing. However, when deponent reached the Juvenile Court
som etim e la te m orning o r e a r ly afternoon, the probation
o fficer th e re inform ed h e r that the p e titio n er had been r e
tu rn ed to the Police Station. When deponent re tu rn ed to
A. 27
A. 28
Affidavit of Mrs. Flora Marie Hammonds
the Police Station that afternoon (17 August 1965) she was
inform ed by the Police that the pe titioner had now been
identified by a lady in Bordeaux on the charge of a ssau lt
with intent to rav ish and also by a Negro woman on a
charge of rap e and that he could not be re le a se d . Depon
ent was not at any tim e advised o r inform ed by the M etro
politan Police or anyone e lse that the p e titio n er was being
subjected o r subm itted to a show-up o r any o ther id en tifi
cation p rocedu res on 17 August 1965. Although the d e
ponent was continuously seeking to obtain the re le a se of
the p e titioner from the tim e when she f ir s t becam e con
cerned and called the M etropolitan Police Station about
m idnight o r sho rtly th e re a f te r on 16 August 1965, on to
the afternoon of 17 August 1965, she was never inform ed
by the M etropolitan Police of any charge against sa id
m inor child and that the only inform ation that she received
in that reg a rd was that from h er atto rney about
[fol. 3] the lo tte ring charge som etim e a fte r 8:00 A.M.
17 August 1965.
FURTHER DEPONENT SAITH NOT.
/ s / M rs. F lo ra M arie Hammonds
Sworn to and subscribed before me
th is 16th day of June, 1969.
/ s / Avon N. W illiam s, J r .
N otary Public
C om m ission E xpires: 8-7-71
PLAINTIFF'S EXHIBIT NO. 1
FILED: N ovem ber 4, 1969
CASE NO. 5120
BRANDON LEWIS, CLERK
BY / s / Guy W. Cooper, D.C.
A. 29
[T itle om itted in prin ting]
AFFIDAVIT OF ARCHIE NATHANIEL BIGGERS
(F iled June 17, 1969)
STATE OF TENNESSEE
DAVIDSON COUNTY
A rchie N athaniel B iggers, a f te r being duly sworn a c
cord ing to law, deposes and says:
That he is p e titio n er in the above case and is now twenty
y e a rs of age, having been born 14 January 1949, On 16
August 1965, he was on h is way home in the evening b e
tween 9:00 and 10:00 P.M. when he was a ttacked by dogs
a t 18th and Scovel S tree t, N ashville, T ennessee, and cut
h is a rm when he fe ll to the ground in p ro cess of chasing
them off. On reach ing hom e, he was taken to Hubbard
H ospital by his m other, M rs. F lo ra Hammonds, and
th e re they w ere accosted by a policem an who asked how
he had rece iv ed h is in ju ry . The p e titioner told the p o lic e
man about the incident a t 18th and Scovel, whereupon the
policem an and deponent's m other held a conversation which
re su lted in the policem an being allowed to take the p e titio n er
with them . The M etropolitan Police O fficers then put the
p e titio n e r in th e ir c a r and took him to an a re a of N ashville
known as Bordeaux and to the home of a M rs. C a rr ie D,
S ilverm an w here they subm itted him alone to M rs. S ilv e r-
man fo r iden tification . M rs. S ilverm an a ttem pted but
could not identify the p e titio n e r. However, instead of
taking the p e titio n e r hom e, the M etropolitan Police O fficers
took the p e titio n e r to the Juvenile Court Building w here they
kept him outside in the c a r questioning him fo r a long tim e .
[fol. 1] In The United States District Court
Middle District of Tennessee, Nashville Division
Affidavit of Archie N. Biggers
T h erea fte r the officers took him into the Juvenile Court
Building and left him th e re with the night attendant. By
th is tim e, it was dawn. P etitioner s lep t th e re until m o rn
ing and had b reak fas t about 7:30 A. M ., a f te r which the
M etropolitan Police O fficers picked him up and took him
to the M etropolitan Jail w here they questioned him about
two hours and then put him in a ce ll. L a te r on that day
they brought him down from his ce ll and subm itted him
alone to M rs. M argaret Beam er, the p ro se cu tr ix
[fol. 2] in the above case , and to o ther women fo r id en ti
fication.
FURTHER DEPONENT SAITH NOT.
/ s / A rchie Nathaniel Biggers
Sworn to and subscribed
before me this 16th day of
June, 1969.
/ s /A v o n N , W illiam s, J r .
N otary Public
A. 30
Com m ission E xpires: 8-7-71
A. 31
[Title om itted in prin ting]
ORDER
(Received fo r Entry 12:30 P .M ., July 29, 1969)
In th is habeas corpus proceeding, the Court rem ain s of
the opinion, ex p ressed in its O rd er en tered on May 12,
1969, that an ev identiary hearing is re q u ired to determ ine
the issu es in this cau se . A fter review ing the tra n sc r ip t
and b r ie fs , the C ourt d e s ire s open court testim ony on the
following m a tte rs : the na tu re of the "show -up" iden tifi
cation p ro cess as opposed to the " line-up" identification
p ro c e ss , and why the fo rm er p ro cess was em ployed in
the instan t case ; and, the g enera l re liab ility of voice
identification p ro c e d u re s , and th e ir re la tiv e im portance
com pared with o ther methods of identification in linking
the p e titio n e r to the offense alleged in the instan t action .
It is ORDERED that an ev identiary hearing , confined
to these issu es , be se t by the C lerk a t the e a r lie s t tim e
consonant with the Court ca len d ar,
[fol. l] in The United States District Court
Middle District of Tennessee, Nashville Division
/ s / Wm, E. M iller
UNITED STATES DISTRICT JUDGE
A. 32
[T itle om itted in prin ting]
ORDER
(Received fo r Entry 8:30 A. M ., A pril 17, 1970)
In th is habeas corpus proceeding, the Court issu ed an
o rd e r on July 29, 1969, to the effect that an ev iden tiary
hearing should be held to determ ine w hether o r not th e re
w ere unconstitutional ir re g u la r it ie s in the identification
p ro cess employed by the police in the in stan t c a se . This
identification p rocedu re was the p rim ary b asis fo r p e t i
tio n e r 's indictm ent. In o rd erin g such a hearing , the
Court was p a rticu la rly concerned with the validity of the
so -ca lled "show -up" identification m ethod as it was used
by police and, a lso , the re liab ility and valid ity of voice
identification p ro cedu res u tilized in the instan t c a se . A
h earin g on these issu es was held on O ctober 30, 1969,
and supplem ental b rie fs w ere filed by both p a rtie s to the
action sev era l weeks la te r .
Before reach ing the m erits of p e titio n e r 's c la im s, a
b rie f s ta tem en t of the facts is in o rd e r . P etitioner,
A rchie Nathaniel B iggers, when 16 y ears of age, was co n
victed on a charge of rape in a ju ry t r ia l and sen tenced to
20 y ears in p riso n . On appeal to the Suprem e
[fol. 2] Court of T ennessee, the conviction was a ffirm ed .
Biggers v . S ta te , # Tenn. , 4 1 1 S .W .2 d
696 (1967). The case was then accepted fo r rev iew by
the Suprem e Court of the United States on a w rit of
c e r t io ra r i . Biggers v . Tennessee, 390 U .S . 404 (1968).
Again, the conviction was a ffirm ed . However, the a f
firm ation was the re su lt of an equally divided co u rt and,
th e re fo re , did not amount to an adjudication of the m erits
of p e titio n e r 's c la im s so as to p reven t him from bringing
the instan t habeas corpus action . [See the May 12, 1969
[f°L 1] In Th& Unite(j states District Court
Middle District of Tennessee, Nashville Division
A. 33
O rd e r en te red by th is Court in the instan t case ; and also
see , E ttin g v . Bank o f the United S ta tes , 2 4 U .S , 59 (1826).]
The p ertin en t opera tive facts in light of the issues ra ised
in the c u rre n t proceed ing a re as follow s. On the evening
of January 22, 1965, M rs. M argare t Beam er was attacked
a t knife-point by an in tru d er who broke into her hom e.
M rs. B eam er's sc rea m s aroused h e r th ir te e n -y e a r old
daughter who rushed to the scene and also began to s c re a m .
At th is point, the in tru d er is alleged to have sa id to M rs .
B eam er, "You te ll h e r to shut up, o r I 'll k ill you b o th ."
This M rs. B eam er did, whereupon she was taken from
the house to a spot two blocks away and raped . The e n
t ir e episode o ccu rred in very dim light and the rape i t
se lf o ccu rred in m oonlight. As a re su lt, M rs. Beam er
could give only a very genera l descrip tion of h e r a ssa ilan t,
d esc rib in g him as being fa t and flabby with sm ooth skin ,
bushy h a ir and a youthful voice.
[fol. 3] O ver a seven month period following the
c rim e the police showed M rs. Beam er various
po lice photographs and had h e r attend sev e ra l " line-ups"
and "sh o w -u p s." However, the v ictim was unable to
identify any of the p e rso n s shown to h e r as being h e r a s
sa ilan t. F inally , on August 17, 1965, p e titio n er was
a r re s te d as a suspect in the rap e of ano ther woman.
While p e titio n e r was being detained in connection with
that case the police asked M rs. Beam er to com e to the
police station to "look at a su sp ec t. " The identification
p ro c e ss em ployed a t th is point was ca lled a show -up. In
th is type of identification p ro cedu re , the suspect appears
b efo re the v ictim alone ra th e r than in the com pany of
o th e rs . The v ictim th e re fo re does not have to attem pt
to choose one p e rso n from a group of persons p resen ted
to him , as in a lin e -u p , but ra th e r the v ictim knows that
Order, 4 /1 7 /7 0
the person p resen ted to him for identification is one whom
the police su sp ec t of having com m itted the c rim e . At the
in s tan t show-up M rs . Beam er identified pe titioner as being
h e r a ssa ilan t. As to what tra n sp ire d a t the show-up,
th e re is som e conflict between the testim ony given by
M rs. B eam er at the tr ia l and that given by h e r at the e v i
den tiary hearing held in th is court on O ctober 30, 1969.
In testim ony given a t the tr ia l , M rs. Beam er testified
tha t on viewing the p e titio n er the " firs t thing" that made
h e r think he m ight be h e r a ssa ilan t was his voice. How
ev er, a t the O ctober hearing , M rs . Beamer te stified that
she identified p e titio n er positively p r io r to having him
speak the words spoken by M rs. B eam er's a ttack e r m ore
than seven months e a r l ie r during the c rim e — "You te ll
h e r to shut up o r I 'll k ill you b o th ." T here is
[fo l• 4] a lso conflict between the testim ony given by
police o fficers at the tr ia l and that given by
them at the O ctober hearing as to w hether o r not iden tifi
cation of p e titio n e r was m ade before o r a fte r he was asked
to speak th ese w ords.
At any ra te , p e titio n e r was identified at this show-up
as being M rs. B eam er's a tta ck e r, and the subsequent in
dictm ent and conviction of p e titio n e r was based alm ost
exclusively upon th is station house iden tifica tion .1
T urn ing now to a consideration of the legal consequences
a ttach ing to the identification p ro cess described above, the
b asic is su e to be dealt with may be defined as follows:
was p e titio n e r sub jected to a type of identification p rocedure,
nam ely the show-up confrontation, which was so unneces
s a r ily suggestive and conducive to irrep a ra b ly m istaken
1 There is considerable doubt on reading the trial record as to whether or
not Mrs. Beamer made a positive in-court identification of petitioner at
the time of the trial.
A. 34
Order, 4 /1 7 /7 0
identification as to have the effect of denying due p ro cess
of law to the p e titio n e r? T here a re re la tive ly few cases
dealing with th is issu e and the validity of the show-up
identification p ro cess in the light of due p ro cess c o n sid e ra
tio n s . However, the teachings of this sm all body of law
point the way for decision of the issu e now before the C ourt.
It is well se ttled that in the absence of exceptional c i r
cum stances any identification p ro ced u re , w hether in the
na tu re of a show-up o r a line-up , em ployed without giving
the suspec t the rig h t to have counsel p re sen t constitu tes a
denial of due p ro c e ss . United States v. Wade, 388 U .S .
218 (1967); and, Gilbert v. California, 388
[fo l. 5] U .S . 263 (1967). Though p e titioner in the in
s tan t c a se was not provided with the advice of
counsel, the ru le of Gilbert and Wade has no application
h e re since that ru le was not given re tro ac tiv e effect.
Stovall v. Denno, 388 U .S . 293 (1967). The Stovall d e
cision m akes it c le a r , how ever, that aside from the right
to counsel, a su spect a lso has the right not to be subjected
to police identification p ro ced u res which a re so unfair,
given the "to tality of the surrounding c irc u m sta n c e s ,"
as to p re sen t a significant p ossib ility of ir re p a ra b ly m is
taken iden tification . W here such faulty p rocedu res a re
em ployed, they p re sen t a "recognized ground fo r attack
upon a conviction. . . . " See, Stovall v. Denno, supra,
at 302; Sim m ons v. United S tates, 390 U .S . 377 at 383
(1967); and Palm er v. Peyton, 359 F .2 d 199 (4th C i r . ,
1966). In light of these general p rin c ip le s , M r. Justice
Douglas succinctly s ta ted the issu e involved h e re in his
d issen ting opinion in the e a r l ie r consideration of p e titio n
e r 's case by the Suprem e Court of the United S ta tes . He
pointed out tha t w hether o r not the p rocedu re by which
M rs. B eam er identified p e titio n er denied him due p ro cess
of law "m ust be evaluated in light of the to ta lity of the
A. 35
Order, 4 /1 7 /7 0
surround ing c ircu m stan ces" with the view of determ ining
if the p rocedu re in p e titio n e r 's case "was so unduly p re ju
d ic ia l as fa ta lly to ta in t his conviction ." Biggers v. Ten
nessee , 390 U .S . 404 at 406 (1967).
The show-up identification p ro cess is , as the expert
w itness fo r p e titio n er te stified , a f a r le ss re -
[fol. 6] liab le method of identification than the line-up
m ethod. The fact that this is so has been given
jud icia l recognition . In Wise v. United S ta tes , 383 F .2 d
206 (D .C . C i r . , 1967); and, Wright v .. United S ta tes ,
404 F .2 d 1256 (D .C . C i r . , 1968), it was s ta ted that "the
p resen ta tion of only one suspec t in the custody of the police
r a is e s p rob lem s of suggestib ility that b rings us to the
th resho ld of an issu e of fa irn e s s . " See a lso , Biggers v.
Tennessee, supra a t 407-408; and, Stovall v. Denno,
supra a t 302. See a lso , Wall, Eye Witness Identification
in Criminal Cases 26-40, and Paul, "Identification o f
Accused P ersons, " 12 A ustl. L . J. 42, 44 (1938) (as cited
by M r. Justice Brennan in the m ajo rity opinion in Stovall
v. Denno, supra.)
The problem in trin sic in the show-up identification p r o
cess is perhaps b e s t s ta ted as follows:
W hatever may be sa id of lineups, showing a su spec t
singly to a v ictim is p regnan t with p re ju d ice . The
m essage is c lea r: the police su sp ec t this m an. That
c a r r ie s a pow erfully suggestive thought. Even in a
lineup the ab ility to identify the c rim in a l is sev e re ly
lim ited by norm al human fa llib ilitie s of m em ory and
percep tion . When the sub ject is shown singly, havoc
is m ore likely to be played with the best-in tended
reco llec tio n s . Biggers v. Tennessee, supra at 407
(Justice D ouglas’ d is se n t.)
A. 36
Order, 4 /1 7 /7 0
However, the use of the show-up p ro cess is not p e r se
unconstitu tional. W here sp ec ia l c ircu m stan ces such as
an u rgen t need fo r rap id identification a r e p re se n t, show-
ups a re allow able. F o r exam ple, in Stovall, the Court
found th a t the show-up was p e rm iss ib le and
[fol. 7] within the bounds of due p ro cess w here the p ro
cedure was conducted in the hospital room of
the v ictim who was at the point of death following a stabbing
a ttack . C learly , in tha t c ase , th e re was no tim e to con
duct a line-up and the urgency of the situation demanded
that if any eye-w itness identification was to be obtained
at all it had to be obtained by the show-up m ethod. The
"to tality of su rround ing c ircu m stan ces" was such tha t the
show-up was found to be p e rm is s ib le .
A side from the u rgen t so r t of deathbed situation which
o ccu rred in the Stovall c ase , thorough analysis of case
law in the a re a rev ea ls certa in o ther se ts of c ircu m stan ces
in which a show-up has been held p e rm is s ib le . F o r e x
am ple, courts have upheld the constitu tionality of the show-
up w here the w itness had an unusually good and susta ined
opportunity to view the p a rtic ip an ts in the com m ission of
the c r im e . The theory of the courts is that this p a r tic u la r
c ircu m stan ce m akes it unlikely that a show-up would lead
to m isiden tifica tion . See, United States ex re l. Gracia
v. F o lle tte , 417 F .2 d 709 (2d C ir . , 1969); Macklin v.
United States, 409 F . 2d 174 (D. C. C i r . , 1969); United
States ex re l. Rutherford v . Deegan, 406 F .2 d 217 (2d
C ir . , 1969); Cline v . United States, 395 F .2 d 138 (8th
C ir . , 1968); and Hanks v . United S ta tes , 388 F . 2d 171
(10th C i r . , 1968). Show-ups have a lso been given court
approval w here the confrontation between the w itness and
the accused occurs "so n e a r the tim e when the alleged
c rim e was com m itted" that the chance of m isidentification
A. 37
Order, 4 /1 7 /7 0
[fol. 8] is m inim al. The tim e period within which the
show-up may be p e rm iss ib le ranges from a few
hours to a few w eeks. See, United States ex re l. Williams
v . LaV alle, 415 F .2 d 643 (2d C i r . , 1969); Stewart v ..
United S ta tes, 418 F .2 d 1110 (D .C . C ir . , 1969); United
States ex re l. Anderson v . Mancusi, 413 F .2 d 1012 (2d
C i r . , 1969) (suspect identified within hours of crim e);
Clark v . United States, 408 F .2 d 1230 (D.C . C i r . , 1968)
(suspect identified within a few weeks and a "very positive
spontaneous identification" by the w itness); and, Bates
v . United S ta tes , 405 F . 2d 1104 (D .C . C i r . , 1968). A lso,
w here the show-up was conducted following o ther independ
ent identification by the w itness ( i . e . , photographic id en ti
fication), o r a p a rtic u la rly good descrip tion of the p a r t ic i
pant in the c rim in a l act, courts have tended to approve the
p ro ced u re . See, United States v . Thompson, 417 F . 2d
197 (4th C ir , , 1969).
While the show-up has been approved within the con
tex t of the four situations described above, the courts
have zealously guarded the rig h ts of the accused w here
the show-up p rocedu re was conducted in a m anner so su g
gestive and conducive to ir re p a ra b ly m istaken id en tifica
tion as to amount to a denial of due p ro c e s s . F o r e x
am ple, a show-up was ex p re ss ly d isapproved w here a
w itness was shown a lone suspect and asked, "Is th is the
m an?" In th is situation , the co u rt s ta ted tha t the w ords
and actions of the police in contriv ing the show-up c lea rly
indicated to the w itness that the police thought th is suspect
had com m itted the c rim e , thereby contribu ting
[fol. 9] to a "m utual re in fo rcem en t of opinion" likely
to lead to m istaken identification . See, Clark
v. United States, 294 F . Supp. 4 4 (D .D .C ., 1968). In
ano ther case , a C ircu it Court of Appeals upheld the hold
ing of a federa l d is tr ic t judge tha t a cell block confrontation
A. 38
Order, 4 /1 7 /7 0
between a w itness and a su spec t was u n n ecessa rily su g g es
tive and th e re fo re the identification obtained from the show-
up could not be in troduced at the t r i a l . That show-up was
objectionable on due p ro cess grounds because the suspect
had been p resen ted alone to the w itness in a sc reened -o ff
portion of the ja il and the w itness knew beforehand that
the su spec t w as considered by police to be the cu lp rit.
See, Clemons v. United States, 408 F .2 d 1230 (D .C . C i r . ,
1968); and see also, United States v . Gregg, 414 F . 2d
943 (7th C ir . , 1969).
In yet ano ther case , a show-up identification was d is
allowed because the identifying w itness did not have the
opportunity to obtain a good view of the parg ic ipan ts in
the c r im e . See, United States v . Gilmore, 398 F . 2d
679 (7th C i r . , 1968). The hesitancy of a w itness to make
a positive identification in a show-up has also been said
to indicate the type of m isidentification danger which would
contravene constitu tional req u irem en ts of due p ro c e ss .
T hese cases m ake it quite c le a r that while a show-up
is constitu tionally acceptable in ce rta in situa tions, courts
w ill look carefu lly at the factual situation surround ing the
show-up to determ ine w hether o r not the p ro cedu re was
conducted in such a m anner as to v iolate due
[fo l. 10] p ro c e ss req u irem en ts . C ourts a lso have looked
to the su rround ing c ircum stances to de term ine
w hether o r not a line-up should have been conducted ra th e r
than the show-up with its attendant dangers of m is id en tifi
cation . F o r exam ple, w here police custody is involved,
it has been held that the need fo r a fo rm al line-up may
not be c ircum vented by keeping a su spec t away from the
stationhouse until an in form al show-up confrontation can
be con trived . See, United States v . Venere, 416 F . 2d
144 (5th C ir . , 1969).
A. 39
Order, 4 /1 7 /7 0
A. 40
The Stovall case and the cases d iscussed im m ediately
above m ake it c le a r that while the p rac tice of showing s u s
pects singly to w itnesses fo r identification is widely con
demned, each case of this type m ust be judged on its own
facts and that convictions based on show-up identifications
will be overtu rned only if the identification p ro ced u re was
so im p erm iss ib ly suggestive as to give r is e to a very su b
s tan tia l likelihood of ir re p a ra b le m isiden tification . See,
Simmons v.. United S ta tes , 390 U .S . 377 a t 384 (1967).
Though the show-up is c lea rly a le ss re liab le method of
identification than the line-up , it is n ecessa ry in som e
c ircu m stan ces and th is Court does not su b scrib e to a ru le
tha t would proh ib it its use as a m atte r of constitu tional
req u irem en t. However, the "to tality of su rround ing c i r
cu m stan ces” m ust be exam ined closely in th is case to
determ ine w hether special c ircu m stan ces o r exigencies
such as those d escribed above existed which would w a r
ran t the use of the show-up instead of the m ore re liab le
line-up p ro cedu re .
[fol. 11] On th is basis the Court m ust conclude that
the c ircum stances here p re sen t a re not such as
to w arran t the show-up p rocedu re and, consequently , that
its u se a t p e titio n e r 's t r ia l denied him due p ro cess of law .
Respondent, a rgu ing in support of the use of the show-up
p ro ced u re , re lie s chiefly on the contention that a show-up
was actually f a ir e r to p e titio n er than a line-up would have
been since no p riso n e rs w ere read ily availab le in e ith e r
the M etro Jail o r the juvenile hom e whose gen era l d e s c r ip
tion m atched that of p e titio n e r. To have conducted a lin e
up under these c ircu m stan ces , contends respondent, would
have had a g re a te r tendency to cause a m isidentification
because in a d is s im ila r group the physical c h a ra c te r is tic s
of pe titio n er, whose general descrip tion m atched that of
Order, 4 /1 7 /7 0
M rs, B eam er's a ssa ilan t, would have been unduly a c
centuated , This argum ent has perhaps som e value but
it is at b e st debatable. A ccording to expert testim ony
produced by p e titio n e r’s a tto rn ey s, a line-up w here no
one had physical c h a ra c te r is tic s s im ila r to p e titio n er
would have been le ss p re fe ra b le than one w here m em bers
of the group a ll had ce rta in s im ila r c h a ra c te r is tic s but,
in any event, would be p re fe ra b le to a show -up. This
conclusion is derived from the belief that any line-up
would be a b e tte r te s t of the v ic tim 's m em ory since it
would dem and the e x e rc ise of som e selec tiv ity in id en ti
fica tion . F u rth e rm o re , th e re is no indication that a
tru ly concerted effort was m ade to produce su itab le su b
jec ts fo r a lin e -u p . Aside from a phone ca ll
[fol. 12] to the juvenile hom e and a screen in g of M etro
Jail inm ates no o ther effo rts w ere m ade. T here
a r e se v e ra l o th e r p riso n fac ilitie s in the a re a and th e re
is no evidence th a t any effort was m ade to sc reen them
fo r su b jec ts . The Court sees no reason why th is could
not have been done in o rd e r to m axim ize the fa irn e ss of
the identification p ro c e ss . H ere, th e re was no evidence
of any deathbed urgency as in Stoval which would have
p rec lu d ed the police from delaying the identification p ro
ced u re until a su itab le line-up could have been a rran g ed .
The c rim e was seven months old, the v ictim was fully
reco v ered and w ell, and th e re a re no o ther indications
th a t the ends of ju s tic e dem anded an im m ediate show-up
ra th e r than a much m ore re lia b le lin e -u p . F u rth e rm o re ,
none of the o ther c ircu m stan ces which the above d iscu ssed
cases indicate may justify a show-up ex isted in the instan t
c a se . The evidence c le a r ly shows that the com plaining
w itness did not get an opportunity to obtain a good view
A. 41
Order, 4 /1 7 /7 0
A. 42
of the suspect during the com m ission of the c rim e .2 A lso,
the show-up confrontation was not conducted n ear the tim e
of the alleged c rim e , but, ra th e r , som e seven months a fte r
its co m m issio n .3 F inally the w itness in the in stan t case
was unable to give e ith e r an independent photographic
identification of the suspect o r a good physical
[fol. 13] descrip tion of h e r a ssa ilan t.4 The natu re of
the show-up as conducted in this c a s e — with
the g re a t lapse of tim e between the c rim e and the iden tifi
cation, the hesitancy of the w itness in identifying the p e t i
tio n e r,5 the c ircu m stan ces of the stationhouse confron ta
tion coupled with M rs. B eam er's knowledge that p e titio n er
was thought by police to be her a s s a ila n t— tended to m ax i
m ize the possib ility of m isidentification of the p e titio n e r.
T ru e , it may have been m ore convenient fo r the police to
have a show -up. However, in m a tte rs of constitu tional
due p ro cess w here police convenience is balanced against
the need to extend b asic fa irn e ss to the suspect in a c r im i
nal c a se , the la tte r value should always outweigh the fo rm
e r . In th is case it appears to the Court that a line-up ,
which both sides adm it is generally m ore re liab le than a
show -up, could have been a rran g ed . The fact that this
was not done tended need lessly to d ec rea se the fa irn e ss
of the identification p ro cess to which p e titio n er was su b
jected .
o
The only other eye-witness, Mrs. Beamer’s daughter could not identify
Biggers. And see, the case of United States ex rel. Garcia v. Follette,
supra and accompanying text and cases.
O
See the case of United States ex rel. Williams v. LaVallee, supra, and
accompanying text and cases.
4 See the case of United States v. Thompson, supra, and accompanying
text and cases.
5 See United States v. Gilmore, supra, and accompanying text.
Order, 4/17/"70
A. 43
Due p ro cess of law and b asic fa irn e ss dem and that the
m ost re liab le method of identification possib le be used in
a c rim in a l c a se . See, Simmons v. United
[fol. 14] States, supra, at 383-384. The conduct of the
show-up in th is case c rea ted an a tm osphere
which was so suggestive as to enhance the chance of m is -
identification and hence constitu ted a violation of due p ro
cess .
C learly , th is identification did not am ount to a h a rm less
e r r o r , since the v ic tim 's identification of p e titio n e r was
v irtu a lly the only evidence upon which the conviction was
founded. See, Chapman v . C alifom ia , 386 U .S . 18 (1966).
In view of th is conclusion, the Court finds it un n eces
sa ry to reach the is su e of w hether voice identification as
used h e re am ounted in itse lf to a violation of due p ro c e ss .
It may be that the valid ity of such identification should
norm ally be le ft to the ju ry . Since the voice id en tifica
tion took p lace during the show-up and the show-up p ro
cedure itse lf is unconstitutional as em ployed in th is case ,
th e re is no reason to reach the specific is su e ra ise d con
cern in g voice iden tification .
A ccordingly, judgm ent w ill be en te red gran ting the a p
p lication of A rch ie Nathaniel Biggers for a w rit of habeas
co rpus, voiding the conviction obtained in the s ta te court,
and d ischarg ing the p e titio n e r from custody a fte r the s ta te
has had a reasonab le tim e to re try him upon the sam e
charge , any such new tr ia l to be "unaffected by M rs.
B eam er's s ta tion -house identification and the testim ony
of the police o ffice rs who w ere p re sen t when it took p lace . "
Biggers v. T ennessee, supra a t 409.
/ s / Wm. E. M iller
UNITED STATES DISTRICT JUDGE
Order, 4 /1 7 /7 0
A. 44
[T itle om itted in prin ting]
MOTION TO RECONSIDER
(F iled A pril 24, 1970)
Comes the Respondent, Lake F . R ussell, and moves
the Court to reco n sid e r its O rd er of A pril 17, 1970, in
the above captioned m a tte r in so far as such O rder holds
that the affirm ance of P etitioner's conviction by an equally
divided United States Suprem e Court was not an ad jud ica
tion on the m erits of his claim s so as to prevent him from
bringing the instan t habeas corpus action fo r the reasons
s ta ted in the accom panying m em orandum b rie f ,
/ s / James C. Dale, III
JAMES C. DALE, III
Special Counsel
S tate of T ennessee
706 N ashville Bank and T ru s t Building
N ashville, T ennessee 37201
[fol. 1] jn xhe United States District Court
Middle District of Tennessee, Nashville Division
[C ertifica te of Serv ice Om itted]
A. 45
[fo1- 1] In T h e United sta tes D istr ict Court
Middle D istr ict of T ennessee, N ashville D ivision
[T itle om itted in p rin ting]
ORDER
(Received fo r Entry 9:00 A. M ., May 4, 1970)
Respondent in the instan t case has filed with the Court
a Motion to R econsider. In so doing, respondent a lleges
tha t the C ourt e r re d in accepting ju risd ic tion over the in
s tan t habeas corpus m a tte r and in deciding on the m erits
of p e titio n e r 's c la im s . R espondent’s allegation of e r r o r
r e s ts on the p roposition that the affirm ation of p e titio n e r 's
conviction by reason of the equal division of opinion of the
United S tates Suprem e Court when it heard p e titio n e r 's
case in Biggers v. Tennessee, 390 U .S . 404 (1968), was
an adjudication that "is as conclusive and binding upon the
p a rtie s as if ren d e red upon the concurrence of all p a r t ic i
pating judges upon ev ery question involved in the c ase . "
Respondent fu rth e r contends that since the issu es ra ised
in th is case have been thus "adjudicated" by the Suprem e
C ourt, the doctrine of re s jud icata should apply and the
instan t petition should have been d ism issed by the C ourt.
The issu e ra ised by responden t's p re sen t
[fol. 2] motion m ay be s ta ted thusly: In a habeas corpus
proceed ing , does an affirm ation by reason of an
equal division of opinion am ong the Justices of the Suprem e
Court am ount to an adjudication between the parties: which,
even though no decision was rendered as to the m e rits of
p e titio n e r 's c la im , m ust be considered final in that the
doctrine of re s jud icata would b a r p e titioner from ra is in g
the sam e constitu tional c laim s in a subsequent habeas
corpus petition?
A fter a thorough considera tion of the case law re levan t
to the is su e , the Court rem ains of the opinion ex p ressed
A. 46
in its O rd er of May 12, 1969, that the m e rits of p e titio n e r’s
constitu tional claim s w ere left undecided by the equally
divided Suprem e Court and that the doctrine of re s judicata
does not opera te in such a m anner as to b a r p e titio n e r
from ra is in g those constitu tional c laim s again as p resen ted
in his habeas corpus p e titio n . It is generally tru e that
when the Suprem e Court is equally divided as to the o u t
come of a case , the judgm ent is au tom atically affirm ed
without opinion. Etting v . Bank o f the United States,
24 U .S . 59 (1826). F u rth e rm o re , as respondent points
out, th e re is a general ru le to the effect that "an a ff irm
ance by an equally divided court i s , as between the p a r t ie s ,
a conclusive determ ination and adjudication of the m a tte r
adjudged . . . . " H ertz v » Woodman, 218 U .S . 205 (1910);
and see United States v . Pink, 315 U .S . 203 (1942);
Durant v . E ssex Co. , 74 U .S . 107 (1868); and, Kaku
Nagana v. Brownwell, 212 F .2 d 262 (7th C ir. 1954).
However, the C ourt is of the view that the g enera l ru le
espoused in the above cited cases cannot be
[fol. 3] taken to stand for the proposition that a techn ical
affirm ation which re su lts from the fortu tious
circum stance of an equally divided court and which m akes
no pronouncem ent, e ith e r p ro o r con, on the m e rits of
the constitu tional c la im s of a habeas corpus p e titio n e r,
m ust be p ro tec ted by the doctrine of re s jud ica ta . The
cases cited by respondent in support of his argum ent a re
unconvincing since they deal wholly with litigation c o n ce rn
ing p ro p e rty rig h ts1 ra th e r than the righ t of a c rim in a l
1 In cases involving contract rights, various property rights, tax liability
questions, e t c . , there are overriding economic and administrative interests
in seeing that finality is achieved in litigation so that "business can pro
ceed as normal. " The cases cited by respondent make this very clear.
In Hertz v. Woodman, 218 U. S. 205 (1910) the Court was concerned with
deciding who was entitled to the possession and enjoyment of a distributive
Order, 5 /4 /7 0
(Continued on following page)
A. 47
defendant to due p ro cess of law w here th e re is a possib ility
that his liberty o r even h is life may be fo rfe it. As the
leading cases on the effect of affirm ation due to an evenly
divided court make c le a r , the p rinc ip les of law which a re
argued in such a case a re not decided but, ra th e r , a re left
unsettled . In such a c ircu m stan ce , the Court affirm s out
of n ecess ity s in ce , in its evenly divided s ta te , it cannot
overtu rn the low er court ru ling . Such an affirm ation is
a techn ica lity only, growing out of the policy of judicial
adm in istra tion that th e re m ust at som e point
[fol. 4] be an end to litiga tion . See, Etting v. Bank
o f the United S ta te s , 24 U .S . 59 (1826).
It is inconceivable that a technical ru le such as th is,
born to se rv e the needs of judicia l adm in istra tion , could
be em ployed to deny a c rim in a l defendant the righ t to ob
tain a full jud icia l determ ination of his constitu tional c laim s
in the federa l c o u rts . C erta in ly , it would amount to a
tra v e s ty on ju s tic e if such a re su lt w ere p e rm itted . In
the c ircu m stan ces su rround ing this case that trav esty
would be compounded by the fac t that the even sp lit of
opinion o ccu rred because of the necessity of M r. Justice
M arshall having to recu se h im se lf apparen tly due to past
p ro fessio n a l assoc iation with p e titio n e r 's a tto rn ey s . The
lib e r ty of p e titio n er and o thers like him should not be left
to the m ercy of m ere fo rtu ity .
(Continued from preceding page)
share of an estate for tax purposes; in Durrant v. Essex C o ., 740 U. S. 107
(1868) the question involved rights in certain realty; in United States v.
Pink, 315 U. S. 203 (1941) the Court was concerned with the disposition
of surplus funds of a Russian insurance company; and in Kaku Nagana v.
Brownwell, 212 F. 2d 262 (7th Cir. 1954) suit was brought to recover stock
vested by an alien property custodian pursuant to the Trading with the
Enemy Act.
Order, 5 /4 /7 0
Fortunately , it has been recognized from e a r ly common
law days to the p re sen t that such techn icalities cannot be
used to thw art the righ t of the c rim in a l defendant to have
the m erits of his constitutional claim fully adjudicated.
As the United States Suprem e Court has recen tly stated :
"Conventional notions of finality of litigation have no place
w here life o r lib e rty is a t stake and infringem ent of con
stitu tional righ ts is a lleg ed ," Sanders v . United S ta tes ,
373 U .S . 1 at 8 (1962).2 Indeed, it has long
[fol. 5] been recognized as a "fam ilia r p rin c ip le that
res judicata is inapplicable in habeas p ro c e ed
in g s ." Fay v . Noia, 372 U .S . 391 a t 423 (1962). If
governm ent is always to be accountable to the jud ic ia ry
fo r a m an 's im prisonm ent, then access to the courts by
way of habeas corpus m ust not be thus im peded. "The
inapplicability of res judicata to habeas, then, as inheren t
in the very ro le and function of the w rit. " Sanders v.
United States, supra at 8; and see e .g . Fay v . Noia,
supra a t 402; King v . Suddis, 1 E ast 306, 102 Eng. Rep.
119 (K.B. 1801); and, Cox v. Hakes, 15 A. C. 506 (H .L .,
1890).
The Court is not persuaded by responden t's proposed
in te rp re ta tio n of 28 U .S .C .A . §2244(c) dealing with the
finality of determ inations by federa l courts in habeas
corpus p ro ceed in g s . As Sanders makes c le a r , §2244(c)
was "not intended to change the law as judically evolved. "
F u rth e rm o re , "if construed to derogate from the t r a d i
tional lib e ra lity of the w rit of habeas c o rp u s , . . . §2244
m ight ra is e se rio u s constitu tional q u e s tio n s ." 3 Sanders
o
See Note 1 supra.
3 See U. S. Const. Art. I § 9, cl. 2 which provides: "The Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the Public Safety may require i t . "
A. 48
Order, 5 /4 /7 0
v. United S ta tes , supra at 11-12 and see , Fay v . Noia,
supra at 406,
It should be made c le a r that while res judicata is in
applicable in habeas corpus p roceed in g s , it is p ro p e r fo r
a judge to deny subsequent applications for habeas corpus
re lie f on the ground that the f ir s t denial had followed a
fu ll hearing on the m erits . However, it should a lso be
m ade c le a r that a judge is perm itted to d ism iss on such
grounds and not required to o rd e r a d ism issa l
[fol, 6] by reason of any considera tions of res jud ica ta .
See, Salinger v . Loisel, 265 U .S . 224 (1960);
and, Sanders v . United S tates, supra.
The Sanders c ase is in s tru c tiv e as to the types of s itua
tions in which a judge may c o rre c tly e lec t to d ism iss a
habeas corpus petition on the ground that a previous h e a r
ing has d isposed of the p e titio n e r 's c la im s on th e ir m erits
Sanders s ta te s that:
"C ontrolling weight m ay be given to denial of a p r io r
application fo r fed e ra l habeas corpus of §2255 re lie f
only if (1) the sam e ground p resen ted in the subsequent
application was de term ined adverse ly to the applicant
on the p r io r application, (2) the p r io r determ ination
was on the m e rits , and (3) the ends of ju s tice would
not be se rv ed by reach ing the m erits of the subsequent
ap p lica tio n ." Sanders, supra at 15.
and fu r th e r that:
"No m a tte r how many p r io r applications for fed era l
c o lla te ra l re lie f a p r iso n e r has m ade, [contro lling
weight may not be given to denial of p r io r application]
if a d ifferen t ground is p re sen ted by the new ap p lica
tion [or] i f the same ground was ea rlier presented
but not adjudicated on the m e r its . " [E m phasis added].
Sanders, supra a t 17.
A. 49
Order, 5 /4 /7 0
A. 50
Looking to the facts here p resen ted in light of the
Sanders ru le and the foregoing reasoning, the Court con
cludes that the p r io r hearing of p e titio n e r 's appeal by the
United States Suprem e Court did not determ ine the m erits
of p e titio n e r 's constitu tional c la im . F u rth e r , as the
m em orandum opinion issued by the Court on A pril 17,
1970, makes c le a r , the ends of ju s tice have
[fol. 7j been serv ed by this Court in hearing p e titio n e r 's
case and reach ing the m erits of the constitu tional
c laim s p resen ted , The fact that p e titio n e r 's conviction
was techn ically affirm ed by reason of the United States
Suprem e C ourt's even division of opinion is of no co n se
quence h e re since the m erits of the c laim w ere not a d
jud icated . Even if they had been adjudicated, Sanders
shows that those claim s would not have been au tom atically
b a r re d from consideration by this Court in a habeas corpus
proceed ing .
It occurs to the Court that th e re is yet another logical
reason to support its decision to consider p e titio n e r 's
c la im . The United States Suprem e Court hearing in the
Biggers case followed the acceptance by the Court of a
w rit of c e r t io ra r i to review the affirm ation of p e titio n e r 's
conviction by the T ennessee Suprem e C ourt. The fortu tous
c ircu m stan ce of an equally divided United S tates Suprem e
Court sim ply had the effect of leaving undisturbed without
opinion the ru ling of the State Suprem e C ourt. T h e re fo re ,
the instan t habeas corpus petition is , in effect, an initial
fed era l habeas corpus petition alleging e r r o r in a s ta te
c rim in a l conviction. This being the case , the Suprem e
Court of the United States has recen tly estab lished the
proposition that notions of finality , such as res judicata ,
fo rfe itu re , o r w aiver, cannot be applied so as to p rec lude
the in tial consideration of federa l constitu tional c la im s in
a fed era l co u rt. Fay v. Noia, supra a t 428.
Order, 5 /4 /7 0
A. 51
[fol. 8] F inally , it should be read ily apparen t that
the situation p resen ted in the instan t case is
highly analagous to the situation w here a c rim in a l defend
ant, a f te r appealing his case to the h ighest s ta te court,
has had his conviction affirm ed by that co u rt and has su b
sequently sought re lie f by way of habeas corpus petition
in a fed e ra l d is tr ic t co u rt. The analogy may be drawn
as follow s. Due to the equal division of opinion among
the Ju stice s, the United States Suprem e Court did not d e
cide th is case on its m e r its . T h e re fo re , the T ennessee
State Suprem e C ourt is the highest court to have ex p ressed
an opinion as to the m erits of p e titio n e r 's c la im . That
being the case , the Court is of the view that p e titioner
Biggers stands in e ssen tia lly the sam e position as a c r im i
nal defendant who, having exhausted his s ta te court rem ed ies
pursuan t to 28 U . S . C . A . §2254, m akes application for
habeas corpus re lie f in fed e ra l d is tr ic t cou rt. In such a
situa tion , and in the instan t situation , th is Court has ju r i s
diction to fully adjudicate p e titio n e r 's constitu tional claim s
since it is an unchallengable p rinc ip le of law that in habeas
corpus cases the ru ling of the highest court of a s ta te on
a constitu tional c la im never b a rs consideration of the sam e
constitu tional issu e by a fed era l d is tr ic t co u rt. Principles
of res judicata s im ply have no application in th is situa tion .
A ccordingly, fo r the foregoing reaso n s the Court con
cludes tha t the technical affirm ation of p e titioner
[fol. 9] B iggers' s ta te conviction by reason of the equally
divided cou rt does not fo rec lo se th is Court from
disposing of the p e titio n e r 's constitu tional c laim on its
m e r its . T h e re fo re , resp o n d en t's Motion to R ehear should
be, and the sam e is hereby, d ism issed .
Order, 5 /4 /7 0
/ s / W m . E. M iller
UNITED STATES DISTRICT JUDGE
A. 52
[f°L 1] In T h e United sta tes D istrict Court
Middle D istr ict of T ennessee, N ashville D ivision
[T itle om itted in prin ting]
NOTICE OF APPEAL
(F iled May 11, 1970)
N otice is hereby given that W illiam S. Neil, W arden,
Respondent above nam ed, hereby appeals to the United
States C ourt of Appeals fo r the Sixth C ircu it from the
o rd e r susta in ing the petition for the w rit of habeas co rpus,
en tered in this action on the 17th day of A pril, 1970.
May 7, 1970.
/ s / Jam es C. Dale, III
Jam es C. Dale, III
Special Counsel
State of T ennessee
706 N ashville Bank and T ru s t Building
N ashville, T ennessee 37201
A. 53
TRANSCRIPT OF PROCEEDINGS
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ARCHIE NATHANIEL BIGGERS,
P etitioner
Vs.
LAKE F . RUSSELL, W arden,
T ennessee State Pen iten tiary ,
Respondent
JUN 151970
BRANDON LEWIS, Clerk
By L. M. Edwards, DC
CIVIL ACTION
No. 5120
BEFORE: The H onorable W illiam E. M ille r, Judge
TRANSCRIPT OF PROCEEDINGS
N ashville, T ennessee
Novem ber 4, 1969
[2 ]
APPEARANCES:
FOR THE PETITIONER:
M r. M ichael M eltsner
Suite 2030
10 Colum bus C irc le
New York, New Y ork, 10019
A. 54
FOR THE RESPONDENT:
M r. Jam es C. Dale, III
Bailey, Ewing and Dale
N ashville Bank and T ru s t Building
N ashville, Tennessee
[3]
INDEX
WITNESS D irect C ro ss R ed irec t R ecro ss
Opening S tatem ents:
M r. M eltsner 5
M r. Dale 13
W illiam A. M cDaniel, J r. 17 32 39
D r. Irwin Pollack 47 62 83
F lo ra M arie Hammonds 85 87
P etitioner r e s ts 88
M argare t F ran ces Beamer 88 97
Floyd Bailey 101 104
Respondent re s ts 104
PETITIONER'S EXHIBITS
NUMBER D escrip tion Ident. F iled
1 A ffidavits of P etitioner, M rs. F lo ra
H am m onds, M r. Avon M. W illiam s,
J r . , and T ran sc rip t of R ecord,
Suprem e C ourt of the United
S tates 11 11
C u rricu lum Vita, Irwin Pollack,
Septem ber, 1968 49 49
A. 55
[4]
TRANSCRIPT OF PROCEEDINGS
THE COURT: C all the case , M r. C le rk .
THE CLERK: C ase No. 5120, A rchie Nathaniel Biggers
v. Lake F. R u sse ll, W arden.
MR. DALE: If the C ourt p lease , I think M r. M eltsner
has been in troduced to the C ourt inform ally , but I thought
I would take th is opportunity to req u est h is adm ission to
p rac tice before th is C ourt. He is a m em ber of the Bar
of the State of New York, of the Suprem e C ourt of the United
S ta tes, of the Fourth , Fifth and Eighth C ircu it C ourts of
A ppeals, and I req u est h is adm ission to p rac tice before
th is C ourt.
THE COURT: All rig h t, s i r , glad to have you to p a r t i
cipate in the c ase .
MR. MELTSNER: Thank you, s i r .
THE COURT: W e're g lad to have you to pa rtic ip a te in
the c ase , and you w ill begin by giving m e a sh o rt h is to ry
of the case and a s ta tem en t of the is su es involved.
MR. DALE: M r. M eltsner, do you think we b e tte r
have our w itn esses s tep outside?
THE COURT: How many w itnesses a re th e re?
MR. DALE: We have one in the co u rtro o m , if Your
Honor p lease .
THE COURT: W ell, le t the w itn esses be excused
[5]
to the w itness room , r e t i r e to the w itness room .
(W hereupon, the w itn esses w ere excused from the
co u rtroom under the ru le of ex c lu s io n .)
MR. MELTSNER: Briefly, Y our Honor, th is case
w as tr ie d in the C rim in a l C ourt of Davidson County, in
Proceedings
1965. The evidence a t that tim e showed that th e re had
been a rape occurring in N ashville in January, 1965. The
v ictim had been a M rs. M argare t Beam er.
THE COURT: W hat’s the nam e?
MR. MELTSNER: Beam er, B-e-a-m-e-r.
THE COURT: All righ t.
MR. MELTSNER: Some seven m onths subsequent to
that rape , a police o fficer a t the Hubbard H ospital saw a
young m an receiv ing m edical atten tion fo r a cut on h is
a rm , and the young m an who is the Petitioner h e re , A rchie
Nathaniel B iggers, was with h is m other a t the hosp ita l a t
that tim e . The date is August 16, 1965.
The officer then asked the boy 's m other if he could take
him back to the place on Scovel S tree t in N ashville w here
the young man had said that he had fallen while chased by
dogs and been cut.
The young m an was taken away by the police and su b
sequently lodged in the Juvenile Detention fac ilitie s h e re
in N ashville fo r the r e s t of tha t night and som etim e during
the following day, the 17th of August, he was taken a c ro ss
[6]
town to the M etropolitan Police h ead q u arte rs , and th e re
was walked into a room in the hom icide d ivision w here
M rs. Beam er was sea ted . T here w ere a lso four o r five
police o fficers p re sen t. One of the police o fficers told
Biggers to say, "Shut up o r I 'l l kill you", w ords which
had been spoken by the ra p is t seven m onths e a r l ie r . He
spoke those w ords, and M rs. Beam er identified him as
the ra p is t.
At t r ia l , h e r identification of him was the only evidence
of B ig g e rs 'g u ilt. The only o ther s ta te 's w itn esses, aside
from a doctor who te s tified tha t th e re had indeed been a
rap e , w ere four or five of the police o fficers who had been
A. 56
p re sen t, and they m ere ly co rro b o ra ted that M rs. Beam er
had in fact identified Biggers a t police h ead q u arte rs .
An appeal was taken from the conviction to the Supreme
C ourt of T ennessee, and in that appeal, the c h a ra c te r and
c ircu m stan ces of the identification w ere challenged on
fed e ra l constitu tional g rounds. The Suprem e C ourt of
T ennessee affirm ed , and the petition fo r w rit of c e r t io ra r i
was g ran ted by the Suprem e C ourt of the United S tates.
As Your Honor knows, that C ourt a ffirm ed by an equal d i
v ision of the eight s itting Ju stices, M r. Justice Douglas
w riting a d issen ting opinion.
Shortly th e re a f te r , th is petition was filed in th is C ourt,
but I do think it ap p ro p ria te a t th is point to m ention that
subsequent to the a ffirm ance by an equally-divided
[7]
C ourt in P e titio n e r 's c a se , the Suprem e C ourt g ran ted
rev iew in a case ra is in g very s im ila r is su e s , that being
F o s te r v. C alifo rn ia , and decided by a vote of five to
four som e of the c ircu m stan ces which m ake an iden tifi
cation of th is so r t v iolative of the due p ro cess clause of
the F ourteenth A m endm ent.
The c la im s p resen ted to Y our Honor by the petition
and the answ er a re p rim arily w hether the identification
h e re in , under the to ta lity of the c ircu m stan ces doctrine ,
did in fact v iolate the F ourteenth Amendm ent; w hether,
and h e re I want to draw a ra th e r fine d istinc tion , but one
I think is explic itly m erited by the Suprem e C ourt decision
in Wade v. United S ta tes, w hether the s ta te use of what
Biggers w as re q u ired to say fo r pu rposes of id en tifica
tion a t t r i a l v io lated the Fifth Am endm ent as incorpora ted
in the Fourteen th , in o ther w ords, w hether the s ta te is
able to put on a w itness who can say , a s M rs. Beam er
did, he said , "Shut up o r I 'l l k ill you, " a t the p re - t r ia l
A. 57
Petitioner's Opening Statement
A. 58
identification proceeding when that testim ony is com pelled
a t the p re - t r ia l identification proceeding.
THE COURT: Now a t the actual t r ia l itse lf, she did
testify?
MR. MELTSNER: M rs. Beamer?
THE COURT: Yes.
MR. ME LTSNER: Y es, she did testify .
THE COURT: And did she identify the defendant a t
that tim e, o r did sh e — was h e r testim ony substan tia lly
[8]
the sam e a s h e r s ta tem en t a t the p re - t r ia l identification
h ere?
MR. MELTSNER: As I read h e r testim ony , Y our Honor,
i t 's quite plain that what she did was d esc rib e h e r p r e
tr ia l identification. At no tim e during the tr ia l did she
point him out in the courtroom . At no tim e did she say,
i t 's tha t m an over th e re , i t 's the second m an from the
righ t a t the tab le , nothing of that so rt o ccu rred , and I b e
lieve M r. Justice D ouglas, in h is opinion, drew the sam e
conclusion from the re c o rd .
THE COURT: She identified h im , in o ther w ords,
from — on the basis of what he had said a t the lineup?
MR. MELTSNER: On the basis of what he had said
and a lso h is physical appearance a t the showup, a t i t 's —
THE COURT: Showup?
MR. MELTSNER: As i t 's generally called .
THE COURT: Y es.
MR. MELTSNER: She told the ju ry what had happened
in effect. She n ever identified him in the co u rtro o m .
THE COURT: Now what is the d istinction between a
showup and a lineup?
MR. MELTSNER: W ell, the l i te ra tu re generally draw s
the d istinc tion tha t when a suspect is p resen ted individually
Petitioner's Opening Statement
for identification, that is called showup; when he is p r e
sented with additional pe rso n s so that there can be som e
com parison of s iz e s , shapes, voice and the like, that is
[9]
ca lled a lineup.
T here a re two o th er c la im s which a re before the C ourt
b riefed in our t r ia l m em orandum which we filed som etim e
ago. One is tha t the identification of the P etitioner was
the fru it of an unlawful a r r e s t , and the la s t is that som e
p re jud ic ia l re m a rk s m ade by the p rosecu ting a tto rney was
re v e rs ib le e r r o r . The p rim ary c la im s re la te to the c o n s ti
tu tionality of these identification p ro cedu res in the c irc u m
stance of th is c a se .
Now on the b asis of the petition and the an sw er, I think
i t 's fa ir to s ta te that th e re a re no substan tia l d ifferences
between the p a rtie s a s to the fa c ts . R ather the p a rtie s
d iffe r a s to the constitu tional application of g e n e ra lly -
ag reed upon fac ts .
Thus today the P etitioner seeks to the extent possib le
to am plify and explore the m eaning of the fac ts in th is
case as was d esc rib ed in th is C o u rt's o rd e r of July 29,
1969, w here the C ourt s ta te s a d e s ire to rece iv e te s t i
mony on the following m a tte rs , and I quote:
"The na tu re of the 'show -up ' identification p ro cess
a s opposed to the 'lin e -u p ' identification p ro c e ss , and
why the fo rm e r p ro c e ss was em ployed in the instan t
case ; and, the g en era l re lia b ility of voice id en tifica
tion p ro ced u res , and th e ir re la tiv e im portance co m
p ared with o ther m ethods of identification in linking
[10]
the p e titio n e r to the offense alleged in the instant
action . "
A. 59
Petitioner's Opening Statement
We have two w itnesses who we would like to p re sen t
with re sp ec t to these questions, but f i r s t I would like to
move the adm ission of the tra n sc r ip t of re c o rd of the s ta te
cou rt proceedings a s reproduced before the Suprem e C ourt
of the United States and the affidavits of Petitioner, h is
m other, M rs. Ham m onds, and A ttorney W illiam s, which
a re on file and which w ere au thorized to be filed by th is
C o u rt's o rd e r of July 1, 1968. I think that w ill shorten
the —
THE COURT: L e t's see , July 1st?
MR. MELTSNER: Yes, Your Honor en tered an o rd e r
a t that tim e au thoriz ing that affidavits be filed on behalf
of the p a r tie s .
THE COURT: All righ t.
MR. MELTSNER: And in response to tha t, I believe
we filed those th ree affidavits and the tra n sc r ip t of re c o rd .
THE COURT: All rig h t. T h e re 's no objection to that?
MR. DALE: Not a t a ll, if Your Honor p lease . I think
the tra n sc r ip t, although I 'm not c e r ta in that it is the one
p rep a red fo r the Suprem e C ourt, is a lread y an exhibit in
the answ er of the Respondent in th is case .
THE COURT: Well, a s long a s it is a full and
[1 1 ]
com plete tra n sc r ip t of the s ta te t r ia l p ro ced u res . You
have one that you've tendered to the C lerk?
MR. MELTSNER: Yes, I believe one was tendered
along with those affidav its , if I may look.
THE COURT: W ell, le t it be filed and file the affidav its .
MR. MELTSNER: May I have just a m om ent, Your
Honor?
THE COURT: Yes.
MR. MELTSNER: I had thought that we had forw arded
to the C le rk a copy of th is which is the Suprem e C ourt
A. 60
Petitioner's Opening Statement
tra n sc r ip t. Perhaps i t 's in the envelope.
THE COURT: Yes, m ight be in the envelope.
[MR. MELTSNER:] One of my w itnesses has a copy of
th is .
THE COURT: Y es.
MR. MELTSNER: And I would ap p rec ia te , when he
com es back, I would place that in evidence with the C le rk .
THE COURT: All r ig h t.
MR. MELTSNER: I t 's probable tha t what the C lerk
h as is the sam e, but a s I am c e r ta in that the contents of
th is re p re se n ts the en tire re c o rd —
THE COURT: W ell, le t it be filed, the Suprem e C ourt
r e c o rd —
MR. MELTSNER: Thank you.
THE COURT: — of the tr ia l and these affidavits,
[ 1 2 ]
M r. C lerk .
THE CLERK: A ll rig h t, s i r . Exhibit 1 to the p e ti
tio n e r.
(PETITIONER'S EXHIBIT NO. 1 w as m arked fo r
iden tification and f i le d .)
THE COURT: Now le t 's see exactly what postu re
w e 're in. The Suprem e C ourt of the United States divided
four to four, is tha t righ t?
MR. MELTSNER: T h a t's c o r re c t .
THE COURT: And it was affirm ed?
MR. MELTSNER: T h a t's righ t, it was affirm ed , but —
THE COURT: Now what a re we exam ining h ere that
has not a lread y been adjudicated by the Suprem e C ourt?
MR. MELTSNER: W ell, the law has recognized , I
believe, in one of Y our H onor's p rev ious o rd e rs in th is
c a se , th a t is — I c an 't quote the la tin p a rtic u la rly well,
A. 61
Petitioner's Opening Statement
but that is an affirm ance by a sp lit decision is of no p re c e
dential value even in P e titio n e r's case .
THE COURT: All righ t.
MR. MELTSNER: Thus we a re try ing the constitu tional
issu es h e re much as in any o ther habeas co rpus petition ,
as if the P etitioner had never gone to the Suprem e C ourt of
the United S tates.
THE COURT: Y es. In o ther w ords, the hearing
[13]
before the Suprem e C ourt of the United States was from an
appellate review from the h ighest court of the sta te?
MR. MELTSNER: T h a t's c o rre c t , it was a rev iew .
THE COURT: And th is is an o rig inal application for
habeas corpus in th is C ourt?
MR. MELTSNER: C o rrec t.
THE COURT: A ll r ig h t. W ell, le t 's see what M r. Dale
has to say in resp o n se .
MR. DALE: If Y our Honor p lease , I would like to take
issue with two of the sta tem en ts re la tin g to the fac ts of
th is c ase , that M r. M eltsner has p resen ted .
In the f i r s t p lace , the State w ill show, and I think the
tra n sc r ip t am ply ind ica tes, that M rs. Beam er did not
identify B iggers, the Petitioner in th is c ase , until a f te r —
o r she did identify h im p r io r to h is speaking the w ords that
he was requested to speak.
Now he was in fact requested to speak the w ords to the
effect, "Shutup, o r I w ill k ill you", but it is our position ,
and the tra n sc r ip t shows and the w itnesses tha t the State
has h e re today w ill show to the C ourt that in fact she id en ti
fied him before he was com pelled to speak those w ords.
In add ition— this re la te s to an in ference to be draw n
from what is contained in the t r a n s c r ip t— in no le ss than
two p laces within the tra n s c r ip t during M rs. B eam er's
A. 62
Petitioner's Opening Statement
testim ony, she was asked f i r s t by the p ro secu to r, is th e re
any
[14]
doubt in your m ind, she said , th e re is no d o u b t. She was
asked la te r on in the sam e testim ony perta in ing to h e r id en ti
fica tion of M r. B iggers, is th e re any doubt in your mind
today? She sa id , no, th e re is no doubt.
So these a re factual d iffe ren ces . I think that by and
la rg e M r. M eltsner is a ccu ra te when he says that we ag ree
on the fac ts , but I w ill not s tipu late any fact that he w ishes
to — that we do n o t— we w ill prove our case today, if Your
Honor p lease .
Now I would a lso like to s ta te that I think that the m ajo r
issu e before us is the issu e sta ted in Stovall v. Denno,
a f te r the Suprem e C ourt indicated that Wade and G ilbert
would not be re tro a c tiv e ly applied . The C ourt th e re said
that the issu e w as, o r th e ir a re a of inquiry was w hether
the confrontation conducted in th is case was so u n n eces
sa r ily suggestive and conducive to m istaken identification,
th a t he was denied due p ro cess of law.
I think th a t 's the sole issu e in the c a se . I think r e q u ir
ing him to speak is , a s in S chm erber, c h a ra c te r is tic of
iden tification . He w as not req u ired to say , "I am guilty".
He was req u ired to speak o r asked to speak sim ply so that
the tone o r tim b e r of h is voice, if you w ill, if possib le —
THE COURT: W ere th ese the w ords that w ere alleged
to have been u tte red a t the tim e of the rape?
MR. DALE: T h a t's my understanding , som e w ords
[15]
A. 63
Respondent's Opening Statement
s im ila r to those.
THE COURT: And your proof will be d irec ted to show
ing why th is kind of lineup w as used?
MR. DALE: We will get into that, yes, s i r .
THE COURT: Showup instead of a lineup?
MR. DALE: Y es, s i r , we w ill show, and I w ill s ta te
to the C ourt what our proof w ill show, th is m an, the Pe
titio n e r in th is case , was six teen y ea rs old. He was su b
stan tia lly la rg e r , I believe, than he is now. I think he
m ust have lost som e weight, but in any event, he was about
two hundred, two ten , over two hundred pounds, and over
six feet ta ll a t that tim e.
He was six teen y e a rs old. If you put him in a lineup
with juveniles, and of cou rse he stands out because of h is
size; if you put him in a lineup with adu lts , he stands out
because of h is youth, so th e re was rea lly no way a lineup
could be held, and our proof w ill show that, but again , I
don 't think — I do believe that the only issu e of co n stitu
tional p roportions is the question of w hether o r not the
confrontation w as unduly suggestive.
THE COURT: W ell, what was th is — I haven ’t recen tly
looked a t the Suprem e C ourt decision, but what was the
sp lit between the C ourt caused by? What was the issue?
MR. DALE: T here is no— you m ean in the Biggers
case?
A. 64
Respondent's Opening Statement
[16]
THE COURT: Y es.
MR. DALE: T here was no opinion.
THE COURT: No am plification o r e laboration?
MR. DALE: The only e laboration w as M r. Justice
D ouglas' d issen t.
THE COURT: And what w as h is d issen t?
MR. DALE: His d issen t, if Y our Honor p lease , I read
the case y este rd ay , but a s best I re c a ll , he sim ply said
that lineups and showups, w here not conducted su p e rfa irly ,
to coin a p h ra se , a re unduly suggestive and v io late due
p ro c e ss , and he would, of co u rse , have re v e rse d the co n
viction. I c a n 't re c a ll exactly what he said .
THE COURT: W ell, som ething s im ila r .
MR. DALE: But th e re was no opinion on the p a rt of
the four who voted to a ffirm , so we have no way of knowing
what the ac tu a l sp lit w as.
M r. Justice M arsha ll did not p a rtic ip a te , which accounts
fo r the lack of an odd vote.
I guess that is the S ta te 's position.
THE COURT: All r ig h t. W ell, l e t 's — suppose you call
your f i r s t w itness then.
MR. MELTSNER: Your Honor, I w ill do tha t. I won
d e r — I re a liz e that you m ay wish to h e a r leg a l argum ent
la te r , but I did want to point out one thing.
THE COURT: A ll r ig h t.
[17]
MR. MELTSNER: And that is shown from page 205 of
the Suprem e C ourt re c o rd in th is case , not only did a num
b e r of w itnesses te s tify concern ing the re lian ce of the w it
n e ss , M rs. B eam er, on voice identification, but the Su
p rem e C ourt of T ennessee m ade such a finding in its
opinion.
I ju s t wanted to ca ll tha t to your a tten tion .
THE COURT: A ll rig h t, you m ight p ass that tra n sc r ip t
up h e re .
MR. MELTSNER: This is my copy which is muchly
annotated . F orgive m e fo r tha t, i t 's had a long tr ip .
MR. DALE: M r. M eltsner, how is the pagination on
that? Does it conform ?
MR. MELTSNER: In the beginning, it r e fe rs to both
the s ta te t r ia l re c o rd and a p rin ted v e rs io n . In o ther
w ords, the index d e sc rib e s two se ts of pagination.
MR. DALE: I see .
A. 65
Respondent's Opening Statement
MR. MELTSNER: We would ca ll C aptain McDaniel
f ir s t .
A. 66
W illiam A. McDaniel, Jr. - Direct
WILLIAM A. McDANIEL, JR. ,
a w itness ca lled to te stify by and in behalf of the R espond
ent, a f te r having f i r s t been duly sw orn, was exam ined and
testified a s follows:
DIRECT EXAMINATION
BY MR. MELTSNER:
[18]
Q W here a re you employed?
A M etropolitan Police D epartm ent, Davidson County.
Q And what is your rank?
A C aptain, C rim ina l Investigation D ivision.
Q And what was your rank in 1965, captain?
A I was a lieutenant.
Q How m any y e a rs have you been a police officer?
A In M arch, be tw en ty -th ree y e a rs , s i r .
Q And w ere you fa m ilia r with the 1965 rape p ro se c u
tion of the pe titio n er, A rchie Nathaniel Biggers?
A I am , s i r .
Q You testified a t h is tr ia l?
A Yes, s i r .
Q Is tha t not c o rre c t?
A Y es, s i r .
Q And am I c o rre c t that you w ere the h ighest ra n k
ing police o fficer d irec tly involved in the investigation of
that case?
A D uring th is tim e, I was lieutenant in charge of
p e rso n a l c r im e , but I did have o ther h igher su p e rio r offi
c e r s over m e to take the d ivision.
Q In the detective division?
A Y es, s i r .
Q Did you have a num ber of o fficers working under
you?
[19]
A Y es, s i r .
Q And in the investigation of th is case?
A Y es, s i r .
Q Now I want you to answ er th is from your experience
a s a police o fficer, when a suspect is shown alone to a w it
ness fo r identification, tha t is generally called a showup,
isn 't it?
A W ell, we don 't use that te rm "showup". We — if
we a re going to have som eone, we usually p re fe r a lineup.
Q You ca ll it a lineup even if th e re is only one person?
A No, no. T his p a r tic u la r c ase , we did not have a
lineup. This is not what I co n sid er a s a lineup.
Q What would you ca ll the kind of identification p ro
cedure em ployed in th is case? Is th e re som e police te rm
fo r it?
A No.
Q The one-on-one identification?
A Not that I know of, s i r , ju st under the c ircu m stan ces ,
it was the only m eans that I could see that we could u se.
Q Well, le t m e ju s t a sk you th is , have you ev er heard
of the w ord "showup" before?
A I've heard of it, yes, s i r .
Q And what did you understand it to m ean?
[20]
A W ell, ju s t like I say , som e use showup; I use
lineup.
Q You thought showup m eant the sam e as lineup?
A T h a t's my in te rp re ta tio n , y es, s i r .
A. 67
W illiam A. M cDaniel, Jr. - Direct
0 But you do recognize th e re is som ething d ifferen t
between an identification p rocedure w here one person is
shown to a v ictim , and an identification w here a num ber
of p e rso n s a re shown to the victim ?
A T h e re 's a d ifference, yes, s i r .
Q Let me a sk you th is , w ere lineups, and by lineups
I m ean a num ber of p e rsons a re shown to the v ictim , w ere
they in use in N ashville in 1965?
A Y es, s i r .
Q They w ere?
A Y es, s i r .
Q But th e re was none in th is case?
A No, s i r .
Q A re you aw are that many law yers and sc ien tis ts
who have studied the m a tte r in reg a rd to lineup co n sider
it a much f a i r e r and le ss suggestive identification p ro c e
dure than the showing of one man to a v ictim ?
A Y es, s i r , th a t’s why I chose —
Q Would you speak up, p lease?
A This is why that — I understand the fa irn e ss of a
lineup, and th is is why I did not have a lineup fo r th e re
[21]
could not be fa irn e ss given to th is person .
Q You d id n 't have a lineup because a lineup would
have been unfair?
A Y es, s i r .
Q And you think what you did was f a ir e r than a lineup?
A Y es, s i r .
Q Now le t m e a sk you th is , what is the approxim ate
population of the M etropolitan ja il, inm ate population?
A W ell, th e re 's d iffe ren ces . Its capacity , I would
say , could hold approxim ately four to five hundred people.
Q How m any is that?
A. 68
W illiam A. M cDaniel, Jr. - Direct
A. 69
W illiam A. M cDaniel, Jr. - Direct
A F our to five hundred, th a t 's my g u ess . I don 't
re a lly know.
Q W ell, how many a re in th e re on an average day?
A W ell, th a t 's d ifferen t a lso .
Q Y our b est e stim ate?
A Around a hundred, I 'd say .
Q And was tha t about tru e in 1965?
A I couldn 't say .
Q W ell now, how about the Juvenile Detention facility
h e re in N ashville, w hat's the approxim ate —
A I t 's en tire ly d ifferen t today than it was a t tha t tim e.
Q W ell, what was the approxim ate population of
[22 ]
that fac ility a t that tim e?
A W ell, it was very sm all, because they d idn 't have
la rg e q u a rte rs , and again , a s fa r a s num ber, I would have
to m ore o r le s s gu ess .
Q W ell, give m e your best gu ess .
A I'd say with g ir ls and boys both, would be fifty
would be th e ir m axim um .
Q Now N ashville is the home of the T ennessee State
P en iten tiary , is it not?
A Y es, s i r .
Q So that you had a num ber of p e rso n s who you could
have selec ted fo r a lineup in th is case in 1965?
MR. DALE: If Your Honor p lease , th is is d irec t
exam ination. I w ill object to leading.
MR. MELTSNER: W ell, I think under Rule 43(b),
Y our Honor, I 'm p erfec tly au thorized to use leading q u es
tions .
THE COURT: A ll righ t, go ahead.
THE WITNESS: I d idn 't think so a t the tim e, no, s i r .
BY MR. MELTSNER:
Q But did you go through the Juvenile Detention fac ility
on August 16, 1965?
A W e— yes, we con ferred with the judge, and a s fa r
a s try ing to get someone of th is young m an 's s ta tu re , which
[23]
th e re w asn 't any availab le .
Q What judge?
A At that tim e , it was Judge Tatum .
Q Was any o rd e r en tered of any kind in Judge T a tu m 's
C ourt in th is case concern ing th is m a tte r?
A Of the lineup p ro ced u res?
Q T h a t's c o rre c t .
A No, s i r , th e re w asn 't any o rd e r.
Q Did you ev er inform P e titio n e r's a tto rneys tha t you
had gone to Judge Tatum concern ing the lineup?
A The D is tric t A ttorney, no, s i r .
Q P e titio n e r 's a tto rneys?
A I d idn 't understand that, s i r .
Q Did you e v e r inform P e titio n e r's a tto rneys in 1965 —
A At tha t tim e —
Q — that you had gone —
A At that tim e, I don 't think that he had an a tto rney ,
a t the tim e we 're speaking of.
Q Did you ev er inform the a tto rneys tha t he had a t
tr ia l?
He was rep re sen ted by M r. Looby and M r. W illiam s
a t tr ia l?
A That was a t the tr ia l .
Q And you know M r. W illiam s and M r. Looby?
[24]
A Y es, s i r .
Q Did you e v e r inform them a t any tim e that you had
A. 70
W illiam A. McDaniel, Jr. - Direct
A. 71
William A. McDaniel, Jr. - Direct
gone to Judge Tatum ?
A No, not that I can re c a ll; they never asked m e.
Q Did you testify a t t r ia l that you had gone to Judge
Tatum ?
A No, s i r , never was asked .
Q And your testim ony h e re today is that you went to
Judge Tatum fo r the purpose of try ing to find out if you
could hold the lineup in th is case?
A No. T h a t's not what I sa id .
Q Would you then te ll me what your testim ony is?
A You asked me if a t that tim e w ere we using a lin e
up p rocedu re , which we w ere in 1965, and p r io r to tha t.
We checked with the fa c ilitie s of our M etropolitan ja il
try in g to find, a s fa r a s , best, as fa r as s ta tu re , a p p e a r
ance, th e re w e ren 't any availab le .
We a lso tr ie d Juvenile C ourt, which that is w here if we
have a lineup, th is is w here we partic ip a te in the lineup
is a t the Juvenile D etention q u a r te rs , not a t the police
h ead q u arte rs , so th e re was none availab le a t Juvenile
C ourt a s fa r a s appearance .
T his is what we believe in. We try to get a t le as t two
people looking as m uch alike as possib le .
Q So you recognized the lineup a s a much fa ir e r
[25J
procedure?
A Y es, but a t th is point, we —
Q T h a t's my question.
MR. DALE: May it p lease the C ourt, I don 't c a re
what Rule 43(b) say s , he c a n 't a rgue with th is w itness,
and he has to le t him an sw er.
THE COURT: He has to le t him fin ish if he has a
fu r th e r explanation.
THE WITNESS: In my opinion, we could not have a
A. 72
fa ir lineup by having a person with young fea tu res and yet
a la rge body, we could not have given him a fa ir lineup.
In the ja il would have been o lder fea tu re s , and a t the
Juvenile Detention would have been way sm a lle r people.
BY MR. MELTSNER:
Q Did you try and en lis t any c itizen s to ap p ea r in th is
lineup?
A S ir?
Q Did you try and en lis t any c itizen s to appear in a
lineup?
A No, s i r .
Q Now, cap tain , le t m e a sk you th is . P etitioner was
a r re s te d on the night of the 16th of August, o r the early
m orning hours of the 17th, am I not c o rre c t?
A Y es, s i r .
Q And the lineup was held on the m orning of the
[26]
17th, is that c o rre c t?
A If you want to ca ll it a lineup, yes, s i r .
Q O r the identification p roced u res?
A Y es, s i r .
Q So that your canvas of the ja ils took place the
m orning of the 17th?
A T h a t's c o rre c t, s i r .
Q And you do recognize tha t a full lineup would have
been a f a ir e r m ethod of identification?
A Y es, s i r .
Q In th is case?
A If we can get a fa ir lineup, it is b est.
Q That is standard operating p rocedure?
A Y es, s i r , that is s tandard p ro ced u re .
Q Now, do you re c a ll testify ing a t the t r i a l in 1965
that an O fficer H arold Woods told Biggers to say c e r ta in
W illiam A. M cDaniel, Jr. - Direct
w ords?
A Y es, s i r .
Q Do you rem em b er what those w ords w ere?
A I can vaguely rem em b er, but I believe, shut up or
I 'l l k ill you.
Q And these w ords w ere spoken so that the v ictim ,
M rs. Beam er, could h e a r h is voice?
A Y es, s i r .
Q So that she could decide w hether o r not he was
[27]
the m an?
A She could identify h is voice, yes, s i r .
Q Let m e a sk you th is . Why, a s a police officer,
with your m any y e a rs of experience , why do you feel that
the lineup is a m o re re liab le p rocedure fo r identification
than the so r t of p rocedu re which was used here?
MR. DALE: If Y our Honor p lease , I 'l l object to that
a s — w ell, i t 's a question asking M r. M cDaniel what he
fee ls . It a lso ca lls fo r a conclusion of som e so r t on h is
p a rt. I think probably if rep h ra sed , it —
THE COURT: Y es.
BY MR. MELTSNER:
Q W ell, perhaps I can a sk you on what basis you b e
lieve th a t the lineup is a su p e r io r and m ore re liab le iden
tifica tion p rocedu re than the one em ployed in th is case ,
draw ing upon your experience a s a police officer?
A Well, le t m e — m ay I give an exam ple, s ir?
Q Surely .
A Say that we have a suspect th a t’s redheaded, light
fe a tu re s , light com plexion. If we could have som eone
e ith e r in the build o r a p e rso n tha t we know that looks —
th a t 's redheaded and a lso light com plexioned, then we
m ight put in blonde headed people, we w ill not m ix — if
th is suspect is redheaded, we w ill not m ix black, dark
A. 73
W illiam A. M cDaniel, Jr. - Direct
A. 74
William A. McDaniel, Jr. - Direct
brown h a ired people with redheaded.
[28]
When the perso n to identify says that the perso n that
she w ants to m ake a com plaint about was redheaded, if
we find two, th ree o r four redheaded people who a re th e re ,
approxim ately the sam e height, sam e build and a ll, and
when you put them in a lineup, why then to me th a t is the
tru e and fa ire s t of a ll lineup p ro ced u res .
Q Now th is c rim e had taken place about seven months
before the identification, had it not?
A It happened in January, yes, s i r .
Q And as I re c a ll, it was a t night?
A Yes, s i r .
Q And th e re was a dim ly lit hallway w here the v ictim
had been grabbed?
A That I do not know, s i r .
Q W ell, do you re c a ll that the v ictim had identified
the a ssa ilan t a s having a teenage voice, a young p e rso n 's
voice?
A I would have to look up h e r descrip tion ; I can 't
re c a l l it.
Q Do you re c a ll how she d escribed him physically ,
your best reco llec tion?
A I would have to go to my no tes, yes, s i r .
Q W ell, would you re fe r to your notes, p lease?
A All rig h t, s i r .
A ll rig h t, s i r , says h is height was six feet
[29]
ta ll, a hundred and eighty poinds, he w as da rk h a ir ,
m edium o r — m edium to d a rk brown com plexion.
Q Now a re you w illing to te ll the C ourt today tha t
th e re w as no one in custody in the city of N ashville on
August 17, 1965, in the m orning, who had any of those
tra its ?
A I'm saying tha t th e re w asn 't. What I 'm saying,
we d idn 't have one a t Juvenile Detention q u a rte rs that
looked young in face with a big s ta tu re . We probably had
one big in ja il, but not young fe a tu re s .
Q And you probably had som e people whose fea tu res
w ere young, but who w eren 't that big, is tha t c o rre c t?
A I'm not saying tha t, no, s i r .
Q W ell, is that possib le?
A Our in te re s t —
Q Is that possib le tha t you had som eone with young
fea tu res?
A No, I 'm not saying it was possib le .
Q A re you saying it was not possib le?
A I'm not saying it w asn 't possib le . I would not know
about it, but w hether we had a la rg e m an with young fea -
tu re s , I know we d idn 't have that.
Q Did you go to every perso n in the ce ll blocks?
Did you look a t every person?
A I called back to the o fficer o r su p e rio r o fficer who
ev er was in charge a t th is tim e , I do not re c a ll, and asked
[30]
them would they check th e ir ja il fo r a person of th is d e s c r ip
tion, which I do every tim e we have a lineup.
Q And you—
A T ell them what we want.
Q And you m ade no a ttem pt to try to find som eone in
the com m unity?
A No, I did not go outside of our building.
Q Let m e a sk you ju s t one final question a t th is tim e.
M r. Biggers w as a r re s te d fo r the c rim e of lo ite rin g , as
I re c a ll , is th a t c o rre c t?
A. 75
W illiam A. M cDaniel, Jr. - Direct
A Y es, s i r , technical charge of lo ite ring .
Q What w as the c h a ra c te r of the evidence ag a in st him
fo r the techn ical charge of lo itering?
A We had ano ther com plaint which he had a lread y
reenac ted , and the lo ite rin g charge was m ore o r le ss
p laced on him as a hold.
Q I see . Now th is o ther com plaint, w as th is a rape
com plaint a lso?
A A ttem pt.
Q And in o ther w ords, he was taken from the hosp ita l
w here he was taken into custody to reen ac t the c rim e in
fron t of ano ther rap e victim ?
A No.
Q In fron t of a fem ale who was c laim ing that she had
been assau lted?
A. 76
W illiam A. M cDaniel, Jr. - Direct
[31]
A No, s i r .
Q Could you explain it then fo r m e, because I 'm not
quite su re .
A This o ther v ictim was in the hosp ita l, had been a d
m itted to Baptist H ospital som e two hours before M r.
Biggers a rr iv e d a t the hosp ita l h im se lf.
Q This is the Hubbard H ospital?
A Hubbard H ospital, which he had m ultiple la ce ra tio n s
of a rm s and hands.
Q Now did you bring him to h e r for identification in
the hospital?
A No, s i r .
Q W ell, how did he reen ac t the c rim e?
A He took the o fficers back to the hom e of th is v ic
tim and showed them exactly what took p lace , w here the
woman was standing, how h is a rm went through the door,
and so fo rth . The woman was not p re sen t.
A. 77
Q The woman was not p resen t?
A No, s i r .
Q Now has the defendant ev er been charged on th is
c rim e?
A Y es, s i r .
Q Has he e v e r been tr ie d on th is charge?
A No, s i r .
MR. MELTSNER: T h a t's a ll I have.
[32]
CROSS -EXAMINATION
W illiam A. M cDaniel, Jr. - Cross
BY MR. DALE:
Q C aptain M cDaniel, why in the co u rse of p rep arin g
a lineup do you not go outside of the ja il o r outside of
Juvenile Detention to get people to stand in a s m em bers
of the lineup?
A This is som ething tha t, a s long a s I've been an
o fficer, it ju s t nev er has been done. We nev er have put
off anything a s — on the na tu re of th is which w e’ll have to,
e ith e r by news m edia of som e type, req u est somebody to
com e in. W e've never done th is .
Q Isn 't it because you c a n 't account fo r the w h e re
abouts of the people in the com m unity, and one of them
m ight ju s t a s w ell be the guilty party a s the perso n who
is the suspec t?
A I nev er thought of it that way.
Q But is n 't that a possib ility?
A I t 's a possib ility .
Q And so th e re fo re you use people whose w hereabouts
you can account fo r?
A T h a t's m ore so, if they do pick out o ther than the
suspec t, then we do know that th is subject was in custody.
Q A lineup or a showup, a s M r. M eltsner has called
William A. McDaniel, Jr. - Cross
it, can a lso be beneficial to an accused , can it not?
A Oh, y es.
[33]
MR. MELTSNER: Now, Your Honor, I 'm going to ob
jec t to the leading questions a t this point.
MR. DALE: Now, may it p lease the C ourt —
THE COURT: I think I 'l l pe rm it him to c ro ss-ex am in e
him .
MR. DALE: Thank you, Your Honor.
BY MR. DALE:
Q Now, C aptain M cDaniel, you w ere in charge m ore
o r le s s of the identification p ro ced u res , the exam ination
if you w ill, of M rs. Beam er, is that —
A Y es, s i r .
Q Is that an accu ra te statem ent?
A Y es, s i r .
Q When M rs. Beam er was brought to the ja il, did the
police suggest to h e r that th is is the m an who did it, we
want your identification of h im , w e've got to have it to
m ake a case? Was th e re anything of that na tu re said to
M rs. Beam er during the co u rse of that identification p ro
cedure?
A No, s i r .
Q Would you d esc rib e fo r the C ourt, p lease , exactly
what took p lace that night to the best of your — on that a f t e r
noon, I believe it w as, to the b est of your reco llec tion?
A M r. Biggers was in custody and a t police h ead
q u a r te rs . He w as located in the detective bureau , in the
office of D r. W. J. C ore , who is now deceased . When M rs.
[34]
Beam er was brought to h ead q u arte rs , she w as placed in
the office now occupied by the se rg ean t of the d e tec tives,
A. 78
which D r ,— a s fa r a s d irec tio n s , I w ill say D r. C o re 's
office is on the e a s t side of the building, the se rg ea n t's
office on the w est side of the building, which is not d i
rec tly a c ro ss from the office, but a c ro ss the hall, but
i t 's a c ro ss the hall and a room down.
Q Would you say i t 's diagonally a c ro ss the hall from —
A Y es, but you cannot stand and look in one office
to the other; i t 's that fa r down.
Q I see .
A M rs. Beam er, which th e re was ano ther woman
a lso in the room , plus m yself.
Q Excuse m e, captain , w as th is o ther woman a lso a
v ictim of somebody?
A I've been try in g — I d idn 't m ake any notes of it,
and I c an 't tru thfu lly say.
Q Can you answ er th is , do you re c a ll h e r having said
anything during the co u rse of the identification that M rs.
Beam er m ade of M r. Biggers?
A I c an 't —
Q Okay, if you c a n 't.
A I do not know who she was o r — but I do know she
w as in th e re .
A. 79
W illiam A. M cDaniel, Jr. - Cross
[35]
Q Okay. Excuse m e, you w ere a t the po in t— you had
M rs. Beam er and th is o ther woman unidentified in that
room . Now, if you w ill, p roceed from th e re , p lease , s i r .
A That is when I in s tru c ted M rs. Beam er what w as to
take p lace. I told h e r that th e re would be a pe rso n to walk
down the hallw ay. If she could identify th is person when
he walked by the door and then proceeded back through
again , which one side and down, and then when he com e .
back, she could see the o ther side, that way he w as led
by two de tec tives which —
A. 80
Q You say led by two detec tives, you m ean preceded,
held on the a rm , handcuffed to, o r what do you m ean by
that?
A No, had one in fron t of M r, Biggers and then one
detective in the r e a r .
Q W ere both of these gen tlem en—
A Just like th ree m en, one behind each o th er.
Q W ere both of these detectives in c iv ilian c lo thes?
A Yes, s i r .
Q W ere they both co lored?
A Yes, s i r .
Q Go ahead, s i r .
A Which, a s they passed , and they com e back, p ro
ceeded back to the room , then the o fficers co m e— Sergeant
[36]
Woods and O fficer Bailey com e back to the office w here
M rs. B eam er w as, and M rs. B eam er— and then we asked
h e r did you recognize anybody, and she said , y es, that
w as the person , the one, the b iggest one was the one that
had raped h e r.
Q Now is Sergeant Woods a fa irly good-sized individual?
A Y es, s i r .
Q How about O fficer Bailey?
A Bailey is a m ed ium — h e 's ta ll, but h e 's not quite
a s big.
Q Okay. Now you say M rs. Beam er said , y es, I
recognize the b iggest one?
A Y es.
Q All rig h t. Now did she say anything e lse a t that
point?
A She said , I would a lso like fo r him to re p e a t these
w ords, which I think, shut up o r I 'l l k ill you, to try to see
if I could identify h is voice. I walked out of the office and
W illiam A. M cDaniel, Jr. - Cross
A. 81
W illiam A. M cDaniel, Jr. - Cross
go and te ll Sergeant W illis to b ring M r. Biggers to the
doorway and have him rep ea t th is . Then I s tep back into
the room w here M rs. Beam er is , and when he com es to
the door, h e 's facing h e r , facing both of u s, and which
Sergeant Woods then in s tru c ts him to rep ea t these w ords,
which he did. Then he goes back to the room that he had
just com e out of, and M rs. Beam er says, y es, she id en ti
fied the voice a lso .
[37]
Q Now th e re was a lso a chance, I suppose, in th is
type of identification p rocedu re that she could a lso say
that was not the m an, is tha t not possib le?
A T h a t's possib le .
Q Has that been done on occasions in your experience?
A Y es, I 've had p ro ced u res like th is before, and no
identification.
Q Do you know of your knowledge w hether M rs.
Beam er failed to identify a num ber of people that w ere
brought before h e r o r before whom she was brought?
A Y es, s i r .
Q Had she e v e r identified ano ther person?
A No, s i r .
Q Now on th is lo ite rin g ch arg e , if I understand your
testim ony c o rre c tly , th is was sim ply a techn ical charge
to enable you to hold M r. Biggers pending the in v estig a
tion of the Beam er case?
A No.
Q Oh, excuse m e. Go ahead and explain it.
A No, a t the tim e the lo ite rin g w as placed against
h im , which was placed a t the Hubbard H ospital, th is was
a techn ical charge to hold him pending the com plaint that
happened tha t night, August the 16th.
Q The very night that he was brought in?
A. 82
William A. McDaniel, Jr. - Cross
[38]
A Y es, s i r .
Q And the night p reced ing the m orning o r the day that
M rs. Beam er identified him ?
A And then the next day, by him being the descrip tion ,
g en era l d escrip tion that we had had sev e ra l com plain ts,
that is why we s ta r te d calling these people in to view M r.
B iggers.
Q On what b a s is , C aptain M cDaniel, would you say
it was f a ir e r in th is case to h av e— and I 'l l use M r. M elts -
n e r 's te r m — to have a showup a s com pared to a lineup?
In o ther w ords, a showup w here you have one person?
A W ell, th is was s tr ic tly my — I sa y — w ell, my d e
c ision , which I couldn 't — to m e, th is w as the m ost f a i r
e s t— I couldn 't have put him in the Juvenile Detention
q u a rte rs with sm all boys, to me that would not have been
fa ir .
Q Can you say without qualification that you in fact
considered the fa irn e ss of the lineup p rocedu re in th is
p a r tic u la r case?
A As long a s I've been in the detective departm en t,
which is 1955, I have n ever tr ie d to m ake any suggestive
m a tte r , e ith e r o ra lly no r by any lineup. I do not —
Q Now— excuse m e.
A I do not like tha t, I want to be fa ir e ith e r way.
Q Can you then say— I'm s o rry , I keep in te rrup ting
[39]
you.
A I'd ra th e r see them te ll m e, no, th is is not the
p e rso n , than put in som e suggestive m a tte r .
Q Did you vary from that p rac tice in the case involv
ing the State of T ennessee v. A rchie Nathaniel Biggers?
A No, s i r .
MR. DALE: I think that w ill be a ll, if Your Honor
p lease .
A. 83
W illiam A. M cDaniel, Jr. - Redirect
REDIRECT EXAMINATION
BY MR. MELTSNER:
Q Captain, you a re being very to le ran t of all of these
badgering law yers, espec ia lly m e. I have ju s t a few m ore
questions h e re .
F ir s t of a ll, you m entioned that M rs. Beamer had been
shown o ther suspec ts in the se v e ra l months a fte r the rap e .
A Y es, s i r , s ev e ra l su spects .
Q Had you brought h e r down to the police headquart
e rs ?
A Yes, s i r , sh e 's com e to police h ead q u arte rs , and
w e've c a r r ie d mug shots to h e r on num erous tim es , and
I 'm su re at som e occasions, investigato rs have ju s t picked
up a su spec t off of the s tre e t and c a r r ie d to her, h e r hom e.
Q And showed them to h e r ?
A Y es, s i r .
[40]
Q T here ?
A Y es, s i r .
Q So she is a perm anen t re s id en t of N ashville, is
tha t not c o rre c t?
A Yes, s h e 's — as fa r as I know.
Q And sh e 's been free ly availab le to the police d e
p a rtm en t and cooperative in th is c a se?
A Y es, s i r , re a l cooperative .
Q Now you m entioned the technical charge of lo ite rin g
and I'm not quite c lea r about what that m eans. Is it a
fa ir s ta tem en t to say that he rea lly w asn 't lo ite ring , but
th is was a charge put on to hold him ?
A. 84
A T h a t's a charge at that t im e — which we do not use
it today— but in tha t y ea r, why we w ere ju s t like a vagrancy,
on juven iles, we would use the te rm of lo ite rin g , and on
the adult, we would use the charge of vagrancy.
Q And you used a charge of lo ite rin g even though he
was taken into custody while he was receiv ing m edical
trea tm en t?
A T h a t's r ig h t. We could have charged him with
the curfew law, which we had at that tim e, but we did not.
Q You could have charged him with a violation even
though he was with his m other?
A He w asn 't with his m other.
Q Did you pick him up at the hospital?
[41]
A No, I d idn 't pe rso n ally .
Q Now le t me ask you th is , you sta ted that you made
this decision about holding the kind of identification p ro
ceeding that was held in th is case . W ere you guided by
any ru le s o r regu lations of the departm ent which sp e c if i
ca lly deal with this m a tte r?
A No, s i r . We h av e— like I said , w e've used this
method befo re , and w e've used lineup p ro cedu res which
I've always s ta ted was to me the m ost fa ire s t , if we can
get the g enera l build, and I've had it both w ay s. I've had
them say , yes, th is is the person ; no, th is is not the p e r
son, and esp ec ia lly in checks, bad check w riting , w e've
used one person showup, as you re fe r to it, very su c c e ss
fully.
Q So you use a g rea t num ber of showups?
A D uring tha t tim e, y es, s i r . Not today.
Q Would you say that showups w ere used m ore often
than lineups?
A No, s i r .
W illiam A. M cDaniel, Jr. - Redirect
A. 85
Q Lineups w ere used about the sam e as showups?
A M ore, I would say .
Q Let me ask you th is . Do your notes re fle c t the
tim e of this identification?
A This identification w a s— I don't have it down, but
it was m ad e— I'd say righ t in the afternoon, ea r ly a f te r
noon.
[42]
Q Around noon o r thereabouts ?
A Y es, s i r , I'd say twelve to one o 'c lock .
Q And am I c o rre c t in s ta tin g that A rchie N athaniel
Biggers was d re sse d in the sam e clothes that he was w e a r
ing when he was brought in?
A Yes, s i r , I'd say th a t. I'm not positive; I w asn 't
p re sen t when he was f i r s t brought in.
Q W ell, he has inform ed me that he was w earing the
clothes that he had worked in at a se rv ic e station , and I
ju s t wonder w hether you reca ll w hether o r not that was
the case ?
A Yes, s i r , he worked at Red Ace S erv ice Station
which they had lapels showing Red Ace and a lso h is — I
think h i s -----
Q T hese a re w orkm en 's c lo thes?
A W orking c lo thes, khaki, I believe.
Q And N ashville police o fficers don 't d re s s quite that
way?
A No, I d idn 't say they w ere d re sse d alike, which
these o ffice rs , M rs. Beam er knew them , fo r they went
and brought h e r up th e re .
Q I s e e . T hese two officers w ere the ones?
A Yes, I did not use them as lineup, could not use
the o fficers and M r. Biggers as a lineup, d idn 't want h e r
to distinguish between w hether the two o fficers w ere to be
W illiam A. M cDaniel, Jr. - Redirect
A. 86
William A. McDaniel, Jr. - Redirect
[43]
used for she knew these o ffice rs ,
MR. MELTSNER: Thank you. Thank you, C aptain.
THE COURT: Now le t me c la rify one o r two little
m a tte r s .
The c rim e itse lf o ccu rred on what date?
THE WITNESS: January the 22nd, 1965.
THE COURT: And when was the pe titio n er, the defend
ant in the s ta te cou rt, when was he f i r s t apprehended, taken
into custody, o r charged?
THE WITNESS: August the 16th, 1965.
THE COURT: August 16th?
THE WITNESS: Yes, s i r , approxim ately 11:30 p . m.
THE COURT: And how was he d re ssed at that tim e?
THE WITNESS: He w a s — like I say , I did not see him
at that tim e , but I'm p re tty su re he had on the sam e c lo th
ing a t seven o 'clock the next m orning when I a rr iv e d as
he had on at eleven o 'clock that night.
THE COURT: W ell, what i s -----
THE WITNESS:---When I saw him , he had on work c lo th
ing, which w a s -----
THE COURT: W ell, when he was in the showup, th a t's
August 17th?
THE WITNESS: Yes, s i r .
THE COURT: How was he a ttire d at that tim e?
[44]
THE WITNESS: The sam e.
THE COURT: With work clo thes on?
THE WITNESS: Work clothes on, yes, s i r .
THE COURT: And that had the Red Ace on it, you say ?
THE WITNESS: Yes.
THE COURT: S erv ice s ta tion?
THE WITNESS: He worked fo r Brooks Red Ace S erv ice
Station.
A. 87
THE COURT: How was he d escribed at the tim e of the
c rim e as f a r as the w itn e ss -----
THE WITNESS: As fa r as d re s s?
THE COURT: Y e s .
MR, DALE: If Your Honor p lease , th is was seven
months befo re , un less y o u 're re fe r r in g to the seco n d -----
THE COURT: The c rim e was January 27, 1965?
MR, DALE: Yes, s i r .
THE COURT: Did she testify how he was d re sse d at
that tim e?
THE WITNESS: Let m e -----
MR. MELTSNER: I don 't believe the s ta te reco rd says
anything about tha t.
THE COURT: All rig h t.
MR. DALE: She is h e re , if Your Honor p lease , and
w e 'l l -----
[45]
THE COURT: S he 's going to te stify ?
MR. DALE: Yes, s i r .
THE COURT: All rig h t.
THE WITNESS: She gave a s ta tem en t at that tim e, on
January the 22nd, if I can ju s t glance over th is , she might
h a v e -----
THE COURT: This o ccu rred a t night in som e a p a r t
m ent house, is that rig h t?
THE WITNESS: No, th is o c c u rre d -----
THE COURT: Tenem ent house, apartm en t house, o r
what was it?
THE WITNESS: She was at h e r hom e, s i r , and was
taken from h e r home out down the ra ilro a d track n ear the
in te rsec tio n of Alpine S tree t, this is w here it happened.
THE COURT: Taken from h e r hom e?
THE WITNESS: Y es, s i r . H er young daughter was
W illiam A. M cDaniel, Jr. - Redirect
A. 88
William A. McDaniel, Jr. - Redirect
p re sen t and m ore o r le ss the s c a re he p laced on h e r that
if you d idn 't m ake your daughter quit scream ing , I 'll k ill
h e r, and then he led the woman out the door,
THE COURT: All rig h t.
BY MR. MELTSNER:
Q The daughter was p re sen t at th is identification
p roceeding?
A W ell-----
[46]
Q She was p re sen t at that tim e?
A S ir?
Q The daughter was p re sen t in August at this id en ti
fication proceedings ?
A No.
Q She was not?
A No, she was not p re se n t.
Q Did she not testify at the tr ia l that she could not
identify M r. Biggers as the ra p is t?
A I'm not fa m ilia r with that, but I believe I heard
som eone say tha t.
Q If the re c o rd rev ea led th a t-----
A If the re c o rd shows it, th a t 's what happened.
Q And that would be generally tru e about your t e s t i
mony. You ce rta in ly had a much b e tte r reco llec tion of
a ll of these events at the tim e of tr ia l , did you not?
A See, I couldn 't s it in the tr ia l , I don 't know what
each one of them te s tif ied .
Q I see , but as to your own testim ony , you su re ly
had a f r e s h e r view on the m a tte r a t that tim e, did you not?
A Oh, y es, s i r .
MR. MELTSNER: Thank you.
THE COURT: All righ t, th a t's a ll.
WITNESS EXCUSED
A. 89
THE COURT: Call your next w itness.
[47]
MR. MELTSNER: D r. Pollack.
(The w itness was sw o rn .)
THE CLERK: S tate your nam e, p lease .
THE WITNESS: Irwin Pollack.
THE CLERK: Just have that sea t.
MR. MELTSNER: Your Honor, I intend to p re sen t ex
p e rt testim ony, and I do intend to qualify him by asking
questions about his background and degree, and a fte r a sk
ing a few of th ese questions, I hope the Court w ill rece ive
in evidence a cu rricu lu m v ita .
THE COURT: What is his spec ia lty?
MR. MELTSNER: He is an experim en tal psychologist.
THE COURT: Ask him a few p re lim in a ry questions.
MR. MELTSNER: Let me s ta te fo r the re c o rd that
M r. Dale has a copy, and I believe ag rees to it.
DR. IRWIN POLLACK,
a w itness called to testify by and in behalf of the pe titioner,
a f te r having f i r s t been duly sw orn, was exam ined and t e s
tif ied as fo llow s:
DIRECT EXAMINATION
BY MR. MELTSNER:
Q Would you s ta te your occupation?
A I am a p ro fe s so r of psychology at the U niversity
[48]
of M ichigan, and re se a rc h psychologist in the Mental
Health Institu te a t the U niversity of M ichigan.
Q Would you s ta te b rie fly to the Court the n a tu re of
your work as a psychologist and your field of sp ec ia liz a
tion?
A I p r im a rily c a r ry out re sea rc h in the field of aud i
to ry percep tion , hearing . I a lso teach in the departm ent
of psychology at the U niversity of M ichigan.
Q Now would you desc rib e fo r the benefit of the Court
som e of your experience on com m ittees in your specialty ,
and if you have consulted with governm ent, any experiences
doing tha t.
A Before I went to the U niversity of M ichigan, I worked
fo r fourteen y ears fo r the United States A ir F o rce w here
we worked p rim a rily in the a re a of speech com m unication.
I now se rv e on a w orking group of the National Academy
of S ciences. It 's ca lled the C om m ittee of H earing and
B io-A coustics which advised the D epartm ent of Defense
with re sp e c t to questions a sso c ia ted with identification .
I'm p re sen tly spending m ost of my tim e on a re s e a rc h
p ro je c t of the National Science Foundation w here I c a r ry
out fundam ental re s e a rc h in the field of hearing .
Q Have you published in th is field?
A Y es, I have.
Q Would you b rie fly d esc rib e som e of your
[49]
A. 90
Dr. Irwin Pollack - Direct
publications ?
A M ost of my publications a re in the Journal of the
A ccoustical Society of A m erica . They num ber between
n inety and a hundred, I would gu ess . They a re concerned
p r im a rily with hearin g and speech percep tion .
Q And have you conducted experim ents ?
A Y es, I have, fo r the p a st tw en ty -th ree y e a rs , and
I am p re sen tly conducting experim ents in this p a r tic u la r
a re a .
MR. MELTSNER: R ather than continuing to b rin g out
D r. Pollack 's c red en tia ls , Your Honor, I ask that the
s ta tem en t of his background be in troduced into evidence,
and that he be qualified as an ex p ert.
THE COURT: Yes, le t it be adm itted; he qua lifies .
THE CLERK: Exhibit 2.
(PETITIONER'S EXHIBIT NO. 2 was m arked for
identification and f i le d .)
BY MR. MELTSNER:
Q Now, D octor, have you read a document en titled
"T ra n sc rip t of R ecord, A rchie Nathaniel Biggers v. T en
n essee , " in the Suprem e Court of the United S ta tes?
A Yes, I have.
Q And a re you fa m ilia r with it?
A Probably not to the extent to which you law yers
p e ru se your docum ents, but I’ve gone through it in fa irly
[50]
conscientious d e ta il.
Q Thank you. On the b asis of your read ing of this
docum ent, w ere you able to fo rm an im pression as to the
p ro ced u res underly ing M rs. B eam er's identification of
A rchie Nathaniel Biggers ?
A Y es, I w as.
Q Now-----
MR. DALE: May it p lease the C o u rt— excuse m e,
M r. M eltsner — I don 't know w hether from read ing that
docum ent anybody can fo rm — unless he is tra in ed in the
law o r in po lice w o rk — can fo rm an im pression of id en ti
fication p ro ced u res .
Now D r. Pollack m ay very well be an expert in audio
o r b io -aco u stica l w ork and psychology and so on, but I
don 't see how, from a sim p le read ing of the tra n sc r ip t,
that he could form an im p ressio n and then testify as an
ex pert on it as to an identification p ro ced u re .
A. 91
Dr. Irwin Pollack - Direct
A. 92
MR. MELTSNER: Your Honor, I'm asking the w it
ness to testify as to his opinion of the re liab ility of the
p ro ced u res em ployed as rev ea led by th is re c o rd . Now
counsel has the opportunity on c ro ss-ex am in a tio n to b ring
out anything he wants about the assum ptions underly ing
his testim ony .
THE COURT: W ell, I 'l l go ahead and rece iv e the t e s
tim ony, and then I 'll a s s e ss it at the p ro p e r tim e
[51]
and evaluate i t .
BY MR. MELTSNER:
Q Would you s ta te what opinion you have form ed as
to the re liab ility of the p ro cedu res underlying th is id en ti
fication?
A I am concerned with sev e ra l aspects of the p ro cess
of identification in th is p a r tic u la r c a se . I believe i t 's
ca lled in the legal term inology so r t of o n e-fo r-one on
identification ra th e r than an identification from am ong a
lineup, and that is the p a r tic u la r a sp ec t I'm m ost con
cern ed about, but th e re a re m any o th er aspects which
I've gleaned from the re c o rd which m ake m e concerned
with re sp ec t to th is p a r tic u la r identification .
Q What conclusion have you draw n, based on th is
concern , as to the re liab ility of these p ro ced u res?
A I com e to the conclusion that th e re a re many fac to rs
which a re p re ju d ic ia l with re sp ec t to the defendant in this
identification p ro c e ss as rev ealed by the tra n sc r ip t.
Q Now what aspec ts of the p ro cess have led you to
that conclusion?
A I've a lread y m entioned the one-fo r-one confron ta
tion. I 'm concerned with re sp e c t to the very long tim e
lapse between the in itia l act and the tim e of identification .
May I consult with som e notes that I m ade going through
th is , Your Honor?
Dr. Irwin Pollack - Direct
THE COURT: Y es.
THE WITNESS: I'm also concerned that the defendant
was identified as a su spec t to the person m aking the id en ti
fication , and that he was requested to u tte r a specific s ta te
m ent which had som e obvious em otional connotations, and
tha t the com plainant was su rrounded by police officers
perhaps in tent in finding for a p a rtic u la r suspect.
All of these things tended to — I would think, in my
opinion, fo r the com plainant to identify the p a rtic u la r
sub jec t as the subject in question.
BY MR. MELTSNER:
Q Now how would the one-on-one identification p ro
cedure lead to that tendency? In o ther w ords, what is it
about the one-on-one identification p ro cedu re which leads
you to conclude that th e re was a g rea t deal of p re jud ice
h e re ?
A May I d ig re ss fo r ju s t a second, Your Honor?
In experim ental te s ts , we try to distinguish between
what we call a fo rced choice p rocedu re and the y e s/n o
p ro c e d u re s . In a fo rced choice p rocedu re , basica lly ,
the task of the sub jec t is to pick one of sev e ra l ob jects,
in th is c a se sev e ra l p e rso n s , pick one of that group which
is the m ost like ly , and in the experim en tal lab o ra to ry , we
alw ays include one tru e case am ong sev e ra l fa lse cases ,
so that we can, in effect, te s t the v e rac ity of the person
m aking the identification .
[53]
So that is called fo rced choice. It has the very nice fe a
tu re that we can, a t the sam e tim e of giving the te s t , we
can de term ine the accuracey of the identification .
But th is of co u rse is not p o ssib le in its tru e extent, a l
though the lineup a ttem pts to get th is , that p a r tic u la r d ire c
tion, because you a re asked to m ake a choice, and i t is
A. 93
Dr. Irwin Pollack - Direct
A. 94
possib le fo r the com plainant to pick somebody o ther than
the p a r tic u la r su spect at hand.
Y es/no p ro ced u re in the labo ra to ry is a situation w here
the sub jec t under question m akes a judgm ent. Is th is —
has a signal been p resen ted , has an object under in v e s ti
gation been p resen ted , yes o r no. It's easy to show that
fo r a given signal, fo r a given object, you can get the p e r
son to say yes maybe n inety-nine p e rcen t of the tim e, o r
yes one p ercen t of the tim e under the exactly sam e e x
p erim en ta l conditions by ju s t changing the conditions fo r
payoff in th is p a r tic u la r s itua tion .
The case that is — I can try to illu s tra te th is , th is is
the p rob lem of a so n ar op era to r on board a sh ip . He
h ears a s ignal, and he has to inform his captain w hether
indeed th is is som e enem y object th e re . Now if the con
ditions a re that by rep o rtin g yes, he doesn 't p re jud ice
the in teg rity of his own ship, that is , no action has to be
com m itted as a re su lt of that d irec tly , then he will r e
p o rt anything th a t 's susp icious, so he will say yes m ore
often, because i t 's much m o re im portan t not to m iss an
ac tua l ta rg e t if a ta rg e t appears than to say
[54]
yes when indeed th e re was no ta rg e t.
On the o ther hand, if, as a re su lt of his saying yes, the
captain has to expose his ship im m ediately so that th e re
is a g rave danger that i f — th e re 's a g rave danger if he
says n o — if he says y es, indeed th e re 's no ta rg e t, then
he will be in a very dangerous situa tion .
Q Now, do I understand the burden of what y o u 're
saying as applied to this case , that p ro ced u res which su g
gest a p a r tic u la r re su lt w ill tend to lead to a positive id en ti
fication of the person p resen ted ?
A In the y es/n o situation , th is is indeed the case , y es .
Dr. Irwin Pollack - Direct
A. 95
Q Now you've m entioned som e o ther fac to rs which
supported your general conclusion of un re liab ility , and I
would like to com m ent about som e of those. You m en
tioned the tim e lapse . How does the tim e lapse tend to
produce an un re liab le identification?
A We all know about the fa llib ility of human m em ory.
One of the standard experim ents in a general psychology
co u rse is , during the f i r s t lec tu re , perhaps in front of
four o r five hundred studen ts, som e act takes p lace in the
m idst of the le c tu re , and at the end of the le c tu re , o r p e r
haps rig h t a fte r the act takes p lace , the students a re asked
to re p o rt what happened, and the d iscouraging thing h e re
with a v isual identification right in the m idst of the student,
often
Dr. Irwin Pollack - Direct
[55]
in very d ram atic c ircu m stan ces , you 'll get a hundred p e r
cent d ifferen t a n sw e rs .
The fallib ility of human judgm ent, coupled with the fact
th a t a very long tim e lapse was — took p lace in th is p a r
tic u la r c a se I was not able to te ll from the re c o rd w hether
the fea tu res of the voice that w ere identified by the com -
plinant w ere brought out im m ediately upon h e r in itia l com
plain t o r only in the subsequent testim ony.
Q Well now, with re sp e c t to th is re lian ce on the voice,
why does re lian ce on voice identification in a one-on-one
situation of th is so r t tend to produce an unre liab le id en ti
fica tion?
A I'm so rry , could you p lease re p e a t? I w a s-----
Q Why does re lian ce on voice produce o r tend to p r o
duce an un re liab le identification ? What is it about the
voice that m akes it p a r tic u la r ly difficult as a m eans of
identifying a p e rso n .
MR. DALE: If Y our Honor p lease , I don’t think that
A. 96
the ru le pe rm ittin g M r. M eltsner to lead applies to this
w itness, and I would th e re fo re object to th is .
THE COURT: W ell, t ry not to lead him .
THE WITNESS: I'm concerned that in effect the su b
je c t 's auditory m em ory of what was sa id changes with
tim e . That is unlike a photograph which doesn 't dep recia te
with tim e o r d is in teg ra te with tim e . Our
[56]
sub jective m em ory of a p a rtic u la r auditory event does in
deed decay with tim e so if you ask me what is it about the
voice that re la te s to th is long -term m em ory, i t 's the im
perm anence , if you w ill, of the m ental copy of what was
sa id , and so th a t— and we know from experim ents that
the fa llib ilitie s of identification will indeed in c rease with
tim e .
BY MR. MELTSNER:
Q Have th e re been experim ents done by you or o ther
so c ia l sc ie n tis ts which support your conclusion?
A I have a b ibliography of voice identification h e re .
This was fu rn ished to me by P ro fesso r A rthur House of
the D epartm ent of Speech Sciences, Purdue. It contained
approxim ately tw elve re fe re n c e s . Included among these
re fe re n ce s was a study which I have perfo rm ed , perhaps
the very f i r s t in th is a re a , of voice identification under
con tro lled , experim en tal conditions.
Q I'm not going to burden the re c o rd with that b ib lio
graphy, but could you su m m arize the general conclusions
of the au thors th e re ?
A The g enera l conclusions?
Q About voice identification .
A Is that voice identification is a fa llib le fo rm of
identification , that is to say the accu racy of voice id en ti
fication can achieve any one of a range of sco res depending
Dr. Irwin Pollack - Direct
Dr. Irwin Pollack - Direct
[57]
upon the p a rtic u la r conditions under which it is exam ined,
but it is never in fallib le .
Q Would you com pare it in any way with som ething
like fin gerp rin ts ?
A Oh, th e re 's nothing l ik e — it has nothing like the
specific ity and in teg rity of fin g e rp rin ts .
Q Would you say it has le ss specific ity than physical
identification ?
A By physical, you mean sigh t?
Q Y e s .
A I would tend to think that because so many m ore
cues that m ight be availab le in visual identification, that
v isual identification would be som ewhat m ore re lia b le .
Q Let me read you a sta tem en t, and then I'm going
to ask you w hether you find it c o rre c t.
"W here the identification is by voice alone, the
absence of som e com parison involves grave danger of
p re jud ice to the su sp ec t. "
MR. DALE: If Y our Honor p lease , I believe th a t 's a
quote rig h t out of e ith e r Wade o r G ilbert.
MR. MELTSNER: It 's Palm er v. Peyton.
MR. DALE: P alm er v, Peyton, and I think this calls
fo r m ore than an expert conclusion on the p a rt of this
w itn ess . It's possib ly a legal conclusion, and I th e re
fo re object.
[58]
THE COURT: This is out of a Suprem e Court opinion?
MR. DALE: No, out of a F ifth C ircu it.
MR. MELTSNER: No, i t 's a Fourth C ircu it which the
Suprem e Court c ited with approval in Stovall v . Denno.
THE COURT: W ell, I 'll let him answ er.
A. 97
A. 98
BY MR. MELTSNER:
Q Did you find that s ta tem en t to be c o rre c t?
A I feel th e re a re ce rta in leg a lis tic aspects I am b e
ing called to answ er, and to tha t extent, I d isqualify but
to p a rap h rase the s ta tem en t in my own te rm s , to re ly
so lely upon a voice identification, I would be very uncom
fo rtab le .
I base th is on the sim p le testim ony, when my daughter
c a lls m e on the telephone, I have two daughters, and I
c an 't te ll which one is speaking for quite som etim e.
Q Your testim ony , would it be any d ifferent, how ever,
if th e re w ere no voice identification in th is case , would
you s ti l l conclude as you had concerning the re liab ility of
th is identification?
A With re sp e c t to the fea tu res of a long-tim e lapse ,
with re sp ec t to the fea tu res of a so r t of one-on-one confron ta
tion, with re sp e c t to the fea tu res of a subject being id en ti
fied as the suspec t, these a re a ll fac to rs that a re not s p e
cific to voice identification, although voice identification,
[59]
I would fee l, is unusually suscep tib le under these c irc u m
stances .
Q And th ese fac to rs led you to what conclusion?
Would you s ta te your conclusion, if it w ere ju s t based on
those fac to rs as to the re lia b ility of the p ro ced u res?
A The p ro ced u res leave a lot to be d e s ired . I should
say that the p ro ced u res a re open to question with re sp ec t
to the absolute identification of a p a r tic u la r defendant in a
p a r tic u la r s itu a tio n . I don 't w ish to make any kind of
com m ent with re sp ec t to the p a r tic u la r individuals con
cerned . I have no knowledge in th is p a r tic u la r c a se .
Q Of co u rse not. W e're talk ing about the p ro ced u res ,
and your testim ony is that those leave a g rea t deal to be
Dr. Irwin Pollack - Direct
A. 99
Dr. Irwin Pollack - Direct
d e sired , is that c o rre c t?
A That is c o rre c t.
Q Now I'm going to read a s ta tem en t, and I would
ju s t like to have your com m ent on it, and this is from
W all's T re a tis e on P re - tr ia l Identification. I believe it
was quoted in the Wade case :
"As bad as a showup is , th e re a re a num ber of
ways it can be m ade w o rse . One method is to point
out the suspec t to the w itness even before the showup
indicating his sta tus as a su sp ec t. If th is p ra c tice is
not deem ed suggestive enough, then the suspect, when
shown alone, can be re q u ired to ac t o r speak in the
[60]
m anner in which the p e rp e tra to r of the c rim e is su p
posed to have acted o r spoken. "
Do you ag ree?
A Repeat that, p lease .
Q "As bad as a showup is , th e re a re a num ber of ways
i t can be m ade w o rse . One method is to point out the s u s
pect to the w itness even before the showup indicating his
s ta tu s as a su sp ec t. If th is p ra c tice is not deem ed su g
gestive enough, then the suspec t, when shown alone, can
be re q u ired to act o r speak in the m anner in which the
p e rp e tra to r of the c rim e is supposed to have acted o r
sp o k e n ."
A By showup, i t 's lineup?
THE COURT: Means one-on-one.
THE WITNESS: I en tire ly ag ree with the g is t of tha t.
I was hung up with re sp e c t to the showup, but th ese a re
fea tu res which indeed a re p re ju d ic ia l, I believe, to the
p roposed defendant,
THE COURT: W e'll take a sh o rt re c e s s a t th is tim e .
(W hereupon, a sh o rt re c e s s was had, a fte r which the
following fu r th e r p roceedings w ere had:)
A. 100
THE COURT: All righ t, p roceed .
MR. MELTSNER: I ju s t have a few m ore questions
[61]
of D r. Pollack, Your Honor.
THE COURT: All rig h t, s i r .
BY MR. MELTSNER:
Q I would like to c la rify th is m a tte r . You have t e s
tified that a lineup is a m ore re liab le p rocedu re than the
one-on-one p ro ced u re used in th is case .
Now suppose a lineup does not contain p e rsons who look
very s im ila r to the su spec t? Do you have an opinion as
to w hether it is s till a m ore re liab le p ro ced u re than a one-
on-one identification? Do you have an opinion?
A Y es, I do.
Q And would you s ta te it fo r the C ourt?
A I believe a lineup can be so constitu ted as to be
very p re jud ic ia l to a defendant. F o r exam ple, if the d e
fendant has been identified as b lack , and the lineup con
s is ts of one black man and ten w hite men, I would think it
would not s e rv e a p a rtic u la ry s tro n g se lec tiv e ro le , but
to the extent to which th e re is opportunity in the lineup of
m aking confusions, it p ro te c ts the defendant to the extent
to which the com plainant can pick out som eone o ther than
the defendant. T h ere is no opportunity to do that under
the one-fo r-o n e confrontation .
Q Now one f in a l-----
A T h e re 's an opportunity to m ake an e r r o r is what I 'm
saying re la tiv e to the p a r tic u la r defendant, p a r tic u la r
[62]
Dr. Irwin Pollack - Direct
su sp ec t in question .
Q T h e re 's an opportunity for an e r r o r in which p ro
ced u re?
A T here is an opportunity in the lineup p ro cedu re to
A. 101
Dr. Irwin Pollack - Cross
identify som eone o ther than the suspec t.
Q I see . Now again, ju s t to c larify , and so th e re 's
no m isunderstanding , you have testified as to the r e l i a
b ility of voice identification p ro ced u res . A ssum e fo r a
m om ent that th e re w ere no voice identification p rocedu res
em ployed h e re , what would your opinion be as to the r e
liab ility of the identification p ro cedu re used?
A My opinion with re sp ec t to such fac to rs as the
length of tim e between the act and the identification, the
one-on-one confrontation, the identification of the p a r
ticu la r individual as a su spec t, all of these might lead the
com plainant to identify a p a r tic u la r person under those
c irc u m sta n c e s .
MR. MELTSNER: Thank you.
CR OSS - EXAMINATION
BY MR. DALE:
Q D r. Pollack?
A Y es, s i r .
Q Perhaps I m isunderstood, according to the data that
was given to me by M r. M eltsner containing your accom
plishm ents , et c e te ra , and qua lifica tio n s , I note that you
[63 J
a re , and I would ce rta in ly not question your e x p e rtise con
cern in g acoustics o r audio o r som ething of the kind,
A T h a t's c o rre c t .
Q But now a re you an expert on eyew itness id en tifica
tion, o r would you co n sid er you rse lf to be an expert on
tha t?
A I would not co n sider m yself to be an expert with
re sp e c t to eyew itness identification . I would, however,
if I could qualify tha t re m a rk , how ever.
Q C erta in ly .
A. 102
Dr. Irwin Pollack - Cross
A I would fee l that I could com m ent with re sp e c t to
asp ec ts of the p ro ced u re asso c ia ted with any p a rtic u la r
identification, that is , I don 't feel I'm an ex p ert w itness
because I have the pow er to pick out from voices a p a r
tic u la r voice, I don't p re tend th is p a r tic u la r sk ill. I
can only com m ent with re sp ec t to the underlying p rocedu res
a sso c ia ted with any identification situa tion .
Q But you do know the fac to rs that one should consider
o r you think one should consider when identifying a person
through voice o r -----
A Many of th ese fac to rs I would subm it a re identical
in the case of visual identification . I don 't p re tend to be
an ex p ert in v isual identification , but such things as the
fa llib ility of human m em ory and things of this type a re not
specific to voice identification .
[64]
Q Is th e re not an optical m em ory and an audio m em ory?
A T here indeed is . If you ask me which is m ore r e
l ia b le —
Q That is my next question .
A I would say that the v isual m em ory is m ore re liab le
over a passag e of tim e . If you ask m e to m ake quantitative
e s tim a te s , I would have to m ake blue sky e s tim a te s , but in
any case , i t ’s quite fa llib le .
Q Did you a ssu m e , in read ing th is tra n s c r ip t , that
M r. Biggers was identified by the rap e victim only by
voice identification?
A No, I — no. Let m e answ er that question.
Q To what extent, then, was th e re a re lian ce by,
accord ing to your read ing of the tra n sc r ip t, was th e re a
re lian ce by the v ic tim on optical identification?
A I'm perhaps being asked to m ake a judgm ent that
the ju ry was asked to m ake, and I feel uncom fortable in
A. 103
Dr. Irwin Pollack - Cross
th is leg a lis tic situa tion .
Q Let me read som e language-----
A As I read the tra n sc r ip t, it seem ed to me tha t the
p rim ary mode of identification h e re was auditory , and
that was how I re a d the tra n s c r ip t .
If you ask me how the ju ry in te rp re ted the p a rtic u la r
s e t of evidence with re sp ec t to optical and auditory
[65]
identification, I c an 't answ er tha t.
Q Well, le t me read from the tra n sc r ip t a couple of
l in e s , and I don 't know how to get you to the righ t page on
th a t, but th is is O fficer Bailey's testim ony a t the tr ia l .
"Q But tha t was one of the ways she identified
him , w asn 't i t?
"A No, she identified him by looking at him,
and said he was the one.
"Q Once she looked at him , that was all by which
she identified h im ?
"A No, he said som ething, but I don 't know e x
actly what he said , s i r . "
On the next page, sam e questioner, sam e an sw ere r.
"Q Had she identified him before he was ever
asked to talk ?
"A S ir?
"Q Had she identified him before he was ever
asked to ta lk?
"A Y es, s i r . "
Now this is adm ittedly only the testim ony of one p erson ,
and it re la te s to the p re - t r ia l confrontation in the police
s ta tio n .
A Yes, s i r .
Q But now, assum ing that that is the fact, that
A. 104
Dr. Irwin Pollack - Cross
[66]
she did identify him by v isual identification p ro cedu res as
opposed to audio o r voice identification, does that n e c e s
s ita te a reco n sidera tion on your p a r t?
A I don't think it n ece ss ita te s a reconsidera tion with
re sp ec t to the fac to rs that give r is e to a situation which
is p re ju d ic ia l with re sp ec t to the defendant. It does give
r is e to the p rob lem that if v isual identification is so m e
what m ore re liab le than auditory identification, then in
deed th is evidence should be weighted m o re -----
Q Then I -----
A May I quote from one section which gives me the
opposite im p ress io n ?
Q C e rta in ly .
A T his is with re sp ec t to the d irec t exam ination of
M r. M cDaniel. I’m s o r ry . Y es, M r. M cDaniel.
"GEN. HOLLINS: At any tim e, w ere you p resen t
when the Defendant was asked to talk?
"A Y es, s i r .
"Q And w hat— when did that take p lace?
"A Right a t that tim e when she id en -----" and
then he stopped — "saw him , she asked us to have him
rep ea t a question which he rep ea ted . T hat, and she
a lso by voice, y e s , s i r . "
The im plication was tha t, as I re ad tha t, and I re a liz e
I'm not on th is stand to be asked what my legal
[67]
in te rp re ta tio n of testim ony is , but as I re ad that, it seem ed
to imply that the p rim ary mode of identification was through
voice, because once you had the opportunity fo r id en tifica
tion, v isually , the o fficer specifica lly d em u rred from ta k
ing that line of approach .
Q Now you, I am assum ing, a re fam ilia r with the
A. 105
p ro cess of questioning and answ ering in a cou rtroom .
A No, I am not.
Q I m eant to ask you, have you te s tified in c rim in a l
c ase s ?
A I have never done that, s i r .
Q I s e e . Well now, in a case of th is kind, such as
the tra n sc r ip t w e 're read ing from , the p rosecu ting a tto rney
w ill ask the question, the w itness will respond, and then
on c ro ss-ex am in a tio n , the sam e p rocedure is em ployed.
In th is p a r tic u la r in stance , the man whose testim ony you
ju s t read p reced ed you on to the s tand . He testified that
she identified him by sigh t, and then asked that he be r e
q u ired to say the w ords, shut up o r I 'l l k ill you.
Now he testified under oath that that was what happened.
Does that n ecess ita te a reco n sid era tio n on your p a r t?
A It n ece ss ita te s a reconsidera tion with re sp ec t to
the extent to which the e n tire mode of identification was by
o ra l m eans alone; y es, it does.
[6 8 ]
Q In o th er w ords, I fully understand that you a re not
re tra c tin g your opinion that th is situation is an unduly su g
gestive one?
A That is c o r re c t .
Q Is that c o rre c t?
A That is c o r re c t .
Q But is that accu ra te?
A That is c o rre c t .
Q But it does mean tha t your re lian ce on voice id en ti
fication is pe rh ap s, assum ing th is testim ony to be tru e ,
is perhaps som ew hat m isp laced?
A I m ust go along with tha t.
Q All righ t, s i r . Did you lean from your read ing
of the tra n s c r ip t tha t th e re was ano ther woman v ictim in
Dr. Irwin Pollack - Cross
A. 106
the sam e room with M rs. Beam er, the v ictim allegedly
raped by M r. B iggers, at the tim e th is identification was
m ade?
I'm not su re it appears in th e re , I 'm not try ing to tr ick
you. I don 't know if i t 's in the tra n sc r ip t.
A It seem ed to me th e re was a lo t of s p a r r in g among
the defense and p rosecu tion attorneys with re sp ec t to the
possib ility of m is tr ia l if this m atte r cam e out before the
ju ry , because that would p re jud ice the ju ry with re sp ec t
to the p a rtic u la r defendant.
Q This happened to re la te , if I may make th is s ta te
m ent, this happened to re la te to another person as opposed
[69]
to the woman who was sea ted in the police station with M rs .
B eam er a t the tim e , but assum e, as an expert on iden tifi
cation of th is kind, that th e re is ano ther woman sea ted in
the sam e room with M rs. Beamer at the tim e M r. Biggers
is brought to the door, o r a t the tim e he walks to the door.
Now assum e that M rs. Beam er say s , th a t 's the m an, and
the o th e r woman say s , th a t 's not the m an, re fe r r in g to an
en tire ly d ifferen t c r im e .
Does th is n e ce ss ita te a reco n sid era tio n of your s ta te
m ents as to the suggestiv ity , if th a t's a word, su g g estiv e
n e ss , of th is s itua tion?
A If I understand your line of questioning, what you’r e
ask ing is , is th is additional evidence to be considered in
the pool of evidence with re sp ec t to the probab ility that
the defendant indeed— o r the suspec t indeed-----
Q I w ish you had p h ra sed the question fo r m e.
A But ce rta in ly i t 's ad m issib le with re sp ec t to the
p robab ility of involvem ent, but in so far as it im proves the
p ro ced u re of a o n e-fo r-one confrontation, I would subm it
tha t as such it does not im prove that aspec t of the p ro
Dr. Irwin Pollack - Cross
A. 107
ced u re .
Q In th a t— excuse m e.
A If you asked me if each of two w itnesses independ
ently co rro b o ra te each o ther with re sp ec t to a p a rtic u la r
c rim e , if it is m ore likely that the defendant indeed is
guilty of one of the two, then I would have to say yes.
[70]
Q But th is is som ething that should be considered in
the to ta lity of c ircu m stan ces with reg ard to this p a r tic u la r
identification p rocedu re , could you say tha t?
A I re a lly m ust confess ignorance, Your Honor, b e
cause it seem ed to me that the Court went to very g rea t
pains to sep a ra te th ese two cases as fa r as i t 's being p re ju
dicial .
Q I tr ie d to explain it to you, D octo r— excuse me one
m om en t— the woman whose situation appeared in th is t r a n
s c r ip t was not the woman sea ted in the police station with
M rs . B eam er. This is a hypothetical, to the extent that
you a re not fa m ilia r with it in the tra n s c r ip t .
I want you to b e a r that in m ind. The lady that you read
about, the o ther lady in th is tra n sc r ip t, is not the lady
sea ted in the police s ta tion . So you may d ism iss that
from your m ind. This lady is another v ic tim , sea ted
with M rs. B eam er, a ttem pting to identify M r. Biggers
when he walks in the door. She says, th a t 's not the man;
M rs. Beam er say s , that is the m an.
My question to you, hypothetical to the extent that you
a re not fa m ilia r with it, is does th is ind icate to you that
the to ta l p ic tu re was so suggestive as to lead th ese w it
n e sse s , these people who a re a ttem pting to identify this
su sp ec t, to say defin itely that this is the m an?
A If your question to me is that, is the to ta l situation
so suggestive tha t the p a r tic u la r com plainant would
Dr. Irwin Pollack - Cross
A. 108
[71]
au tom atica lly identify the individual as the p a r tic u la r guilty
p a rty , so suggestive that she would au tom atically identify
the p a rtic u la r individual as the guilty party , then I would
have to adm it that h e re is an exam ple of a situation w here
ano ther com plainant in the sam e situation does not au to
m atically identify him , so if the essen ce of your question
is the overb earin g suggestiveness of the situation so g rea t
as to au tom atically identify the individual, then indeed you
have a form of — I think very w eak— but a form of proof
tha t it is not absolu tely conclusive.
Q Now you m entioned som ething about n inety-nine
tim es out of a hundred, o r one tim e out of a hundred.
Would you go through that fo r me one m ore tim e? Do you
re c a ll your testim ony on d irec t exam ination?
A Yes, I probably goofed that up, but b asica lly what
I 'm try ing to say is that if I take a sub jec t in a labo ra to ry ,
and I se t up a rew ard schedule so that I give them a do lla r
every t im e — when a signal ap p ea rs , he says, yes, I heard
a s ignal, but when a signal is not p resen ted , and he says,
y es , I h ea r a s ignal, I don 't penalize him , then he will
be saying m ost of the tim e , yes, I h e a r a signal, and he
will continue to respond in th is p a r tic u la r way.
On the o ther hand, if I balance th is in the opposite way
tha t I very heavily penalize him fo r saying, yes, when
th e re is no signal, but I don 't rew ard him very much when
[72]
he say s , no, th e re was not a signal, I would get him to be
responding in the o th er d irec tion , and I could m anipulate
him all over the p lace .
This has nothing to do with the em otional suggestiv ity .
It is the situation which p e rm its me to get th is kind of
con tro l over the sub jects y es/n o behav io r.
Q I was ce rta in in my own mind you w ere re fe r r in g
to voice identification a t the tim e.
A Y es.
Q That p a r tic u la r analogy is re la ted only to voice
identification ?
A No, it is re la ted to a very , very wide c la ss of
psychological ex p erien ces.
Q What is the rew ard system as it re la te s to voice
and eyew itness identification?
A To the extent to which on e— to the extent to which
a given situation is fa r m ore accu ra te than another, then
it is le ss am enable to th is kind of m anipulation, but if the
situation is such as to provide uncerta in ty with re sp ec t
to the b asis of identification , then it doesn 't m a tte r w hether
i t 's voice, feel, sight, o r any way you want to do an ex
p e rim en t.
I 'm re fe r r in g to so rt of the decision s tru c tu re of the
person who has to m ake the judgm ent, and th a t's why the
fo rced choice situation , w here in effect the burden of proof
[73]
on him is to pick the one that is c lo ses t to the tru th and
then you can check his verac ity p e rm its the experim en ter
to m ake a check on the sub jec t,
Q You have not, as I understand your testim ony, ex
am ined M rs. B eam er, the v ictim of the rape?
A No.
Q Nor of M r. B iggers, the a lleged p e rp e tra to r?
A No, I don 't have any opinion with re sp ec t to the
individual v e rac ity of the individuals concerned .
Q Is it possib le that M rs. B eam er's audio m em ory
o r v isual m em ory, if you w ill, exceeds that of the average?
A It is en tire ly p o ssib le .
Q I s e e .
A T h e re 's people tha t can rem em b er v isual events fo r
A. 109
Dr. Irwin Pollack - Cross
Dr. Irwin Pollack - Cross
v ery lo n g perio d s of tim e . They happen to be very ra r e .
Q Would it have a bearing on your testim ony h ere to
day if you knew that M rs . Beam er had viewed a num ber of
people by them selves in a showup situation , if you re m e m
b e r how M r. M eltsner explained it to you?
A Y es.
Q And did not identify any of them , and by a num ber,
I would give you an exact num ber if I knew.
A I recognized th is from the tra n sc r ip t, that is if I
understood the tra n sc r ip t, M rs. Beam er did not identify
the f i r s t p ic tu re that was p resen ted to h e r .
[74]
Q O r individual, not ju s t p ic tu re .
A O r individual, I'm s o r ry . I couldn’t te ll from the
tra n s c r ip t w hether she had confronted any o th e r individual
o th e r than photographs, but maybe it is in the tra n s c r ip t .
I was unable to de term ine that, and I then have to go back
to my sta tem en t with re sp e c t to a lineup, A lineup is
b e tte r than a one fo r one confrontation, but if the individuals
in the lineup a re so d is s im ila r to what the genera l p ic tu re
of the defendant is , I'm so rry , p a r tic u la r su spec t is , then
it would have very l i t t le to do, and so I c an 't com m ent with
re sp ec t to how im portan t it was that indeed M rs . Beam er
did confront o th e r p a r tic u la r suspec ts if they indeed w ere
v e ry fa r from h er, if you w ill, idealized p ic tu re of what
the p a r tic u la r guilty p a rty was l ik e .
Q In a behav ioral psychological sense , would that
not ind icate to you tha t h e re was a conscientious person
attem pting at le a s t to designate the tru e p e rp e tra to r of
this c rim e ?
A I assu m e M rs. Beam er is very s in c e re . I assum e
from the e n tire t ra n s c r ip t th e re is no p a r tic u la r reason to
sing le out a p a r tic u la r su spec t in th is p a r tic u la r case , and
A. Ill
Dr. Irwin Pollack - Cross
she is doing, with re sp e c t to the b est of h e r ab ilitie s , a t
tem pting to identify the p e rp e tra to r of h e r c rim e .
T hese a re fac to rs which I believe should be considered
with re sp ec t to the extent to which the situation has
[75]
a degree of suggestiv ity , suggestiveness, tha t is if it w ere
com pletely , overbearing ly suggestive, tha t the individual
m ust n e ce ssa rily be the one selec ted , then all of this e v i
dence that you b rin g up with re sp e c t to the fact that the
p a r tic u la r su spect is not the f ir s t one she confronted, and
she had gone through a num ber of photographs previous to
th is situation , say that indeed M rs. Beamer is not acting
ra sh ly and groping a t s traw s with re sp ec t to the f i r s t w it
ness that she is confronted w ith, suspect sh e 's confronted
with, s o r ry .
Q Would it not a lso have affected your determ ination
to know that she had not identified any person p r io r to this
and then re tra c te d the sam e ? In o th er w o rd s-----
A I think these a re s ta tem en ts which have to be weighed
with re sp ec t to the p robab ility of a ccu racy of h e r iden tifi
cation, yes, s i r .
Q Would it not a lso affect your determ ination that she
had not failed to identify this p e titio n er on the f i r s t tim e
she saw him ?
A I'm so rry , perhaps th e re 's an ex tra negative.
Q Did not fa il to identify him the f ir s t tim e she saw
him .
A She did not f a i l— that m eans she did identify him
on the f i r s t tim e she saw him ?
Q Does that affect your determ ination?
A I will have to continue to say yes, these a re
[76]
fac to rs that would re la te to the p robab ility of her id en tifi
cation of a given individual.
Q Would not a lso the fact that th e re was no m a te ria l
d isc rep an c ies between the descrip tion that she gave the
o fficers who answ ered the com plaint and the actual d e
scrip tion of th is p e titio n er likew ise have a bearing?
A I'm su re it m ust have a bearing . May I say I
could not read from the tra n sc r ip t to what extent the
in itia l descrip tion did indeed m eld w ith -----
Q I think y o u 're righ t; I don 't believe i t ’s in th e re .
A I beg your pardon ?
Q I don 't believe i t 's in th e re .
A I don 't believe i t 's in th e re to what extent she made
an identification which la te r did jive with the c h a ra c te r is tic s
of the individual so concerned.
Q Would not the fact that she had an opportunity to
observe the individual who com m itted th is c rim e also
weigh in your calcu lation ?
A If y o u 're asking m e if th e re was m ore light, would
sh e have a b e tte r chance of identifying him , o r if he talked
m ore , she would have a chance of identifying his voice, o r
a hypothetical question of this type, I m ust a ssu red ly say
y e s , the m ore the evidence, the g re a te r the opportunity
to m ake the id en tifica tio n .
[77]
Q Have you studied the effect of traum a on v isual
and audio m em ory?
A No, I have not.
Q So y o u 're not p re p a red to say today that the u n d e r
going of an experience of that kind could not cem ent in h e r
m em ory h e r audio and v isual m em ory the c h a ra c te r is tic s
of the p a r tic u la r person who p e rp e tra ted the c rim e?
A I am not p re p a red to s ta te an expert opinion, but
I do have an opinion with re sp e c t to that p a r tic u la r a sp ec t.
Q As long as we have qualified tha t i t 's not an expert
opin ion .
A. 112
Dr. Irwin Pollack - Cross
A T h a t's c o rre c t, but I believe i t 's somewhat m ore
educated than a com pletely lay opinion in that it re su lts
from thinking about the experim ental l i te ra tu re , I believe
the l i te ra tu re is very con trad icto ry on this point. T hat
is to say , I think there a re ce rta in trau m atic events which
indeed re su lt in v e ry long lastin g m em o rie s . T here a re
o thers which, as a re su lt of the traum atic event, m em ories
a re a lm ost com pletely wiped out, and th e re fo re very un
re lia b le , and i t 's ve ry h a rd . You can 't get it by counting
c ase h is to r ie s . It's very h a rd to balance w hether i t 's
m ore lik e ly — trau m atic to burn the p a rtic u la r event in
the p e rso n 's mind o r on the opposite hand m ore likely that
the trau m a tic event would re su lt in a situation such as the
person would actively fo rget it.
Q You've not s ta ted an opinion; you 've s ta ted
[78]
what the sp lit of au thority is in your fie ld .
A T h a t's c o rre c t .
Q If I w ere to walk over and hit you in the jaw and
say , you don 't answ er th a t question righ t, would you r e
m em ber m e seven months from now?
A I'm rea lly not s u re , I would like to answ er ob
viously yes, but I'm re a lly not su re . In the sam e way,
if I w ere a defendant and som eone pointed m e out as hav
ing seen m e, I would feel uncom fortable.
Q But we would take that as that is your opinion as
co n tra sted with the m a s s -----
A The m ass is not one way o r the o th er. T h ere a re
cases on e ith e r side w here you burn in the trau m atic e x
p e rien ce and actively re p re s s it, and i t 's a very difficult
question to answ er.
Q Just one m ore question . I believe I understood
your testim ony on d irec t that v isual identification is m ore
A. 113
Dr. Irwin Pollack - Cross
A. 114
Dr. Irwin Pollack - Cross
re lia b le than voice iden tifica tion .
A If you ask me to cite a p a r tic u la r experim ent th e re ,
I probably could not. It is my im pression that that is the
case , and I ju st m ake that im pression based upon so rt of
the to ta lity of things availab le from ju s t listen ing , from
the case w here under ideal c ircu m stan ces , under ideal
lighting and so fo rth , which I don't believe took p lace in
th is p a r tic u la r situation , is the case , but I will go along
with tha t s ta tem en t.
[79]
Q A re you an expert on the iden tifica tion— the id en ti
fication ab ility of o th e r sen ses such as feeling?
A No, I am not, but I believe I could com m ent with
re sp e c t to the p ro cedu res under which identification te s t
is m ade, and I feel the sam e way with re sp ec t to visual
and voice iden tification . I don 't feel I'm an expert w it
ness with any pow ers fo r voice, v isual o r any o ther form
of identification, but as an experim ental psychologist, I
can te s tify as to the effect of the d ifferen t fa c to rs of the
situation re la tin g to the accu racy of the p a r tic u la r id e n ti
fication .
Q All r ig h t. Now given in th is situation that the light
perhaps could have been b e tte r , that the voice id en tifica
tion possib ly could have been a g rea t deal m ore accu ra te
had th e re been opportunity fo r fu r th e r study of the voice,
in your m ind, is the com bination of the two identification
p ro ced u res , voice and v isual, m ade under such suggestive
c ircu m stan ces that it would be im possib le fo r M rs. Beam-
e r to have accu ra te ly identified this p e titio n e r?
A I think I fa iled righ t a t the end. If y o u 're asking
m e was the situation such tha t it would have been im pos -
s ib le fo r h e r to m ake an a ccu ra te iden tification , I m ust
say th a t the evidence from the tra n s c r ip t does not p e rm it
A. 115
m e to m ake that s ta tem en t. It do esn 't p e rm it me to make
the s ta tem en t w hether she could have made an accu ra te
id en tifica tio n — if th e re was sufficient inform ation to m ake
an absolutely
[80]
accu ra te o r an absolu tely in accu ra te iden tifica tion .
All I can say is the p rocedu res under which she made
the identification, I fe lt, w ere p re jud ic ia l with re sp ec t
to the defendant.
Q Now perhaps you m isunderstood m e -----
A I'm not try ing to im peach h e r testim ony.
Q I understand .
A I don 't know the c ircu m stan ces , and I don 't p retend
to know the specific events a t the tim e except as revealed
through the read ing of the tra n sc r ip t.
Q I get then from the read ing of your testim ony,
y o u 're not saying that it would be im possib le fo r th is id en ti
fication m ade by M rs. Beam er to be accu ra te?
A It would not be im possib le . If you a re asking me
is th e re a p o ssib ility that the p a r tic u la r defendant indeed
is the guilty p a rty , based upon the identification, of cou rse
i t 's p o ssib le . I 'm in no way te s tify in g -----
Q You can 't s ta te to what extent it is not possib le ,
can you?
A No, a ll I can say to what extent the p a r tic u la r p ro
cedures under which she identified him w ere p re jud ic ia l
to the defendant, but I cannot say that th e re 's a given
probab ility based on the tra n s c r ip t that he indeed was the
individual o r not. I'm not m aking any judgm ent with r e
spect to tha t.
Q So the v a riab les then a re re a lly what M rs.
Dr. Irwin Pollack - Cross
Dr. Irwin Pollack - Cross
[81]
A. 116
B eam er actually rem em b ers , a re n 't they, and h e r ab ility —
A The v ariab les a re the environm ental situations
under which she made the identification, the tim e lapse
and things of th is type. Yes, s i r , these a re the v a riab les ,
as well as the in teg rity , the goodness of the o rig inal in
form ation on which she was m aking that judgm ent, and I
g a th er from the tra n sc r ip t that th e re was very little light
availab le fo r h e r to m ake a visual identification.
Q Now I only have one o r two m ore questions, but
suppose you have a man of M r. B iggers' physical c h a r
a c te r is tic s a t age s ix teen , which is som e four y ears ago.
He was approxim ately th is sam e s ize , if not b igger, le t
us assum e, weighing two hundred five, two ten, possib ly
m ore , I ’m not exactly su re m yself, and about the sam e
height th a t he is now. He is a r re s te d and charged with a
c r im e , and a t his age, he m ust be tre a ted as a juvenile ,
he m ust be taken to Juvenile C ourt.
A ssum e fu r th e r th e re a re no juveniles p re sen tly d e
ta ined in Juvenile C ourt o r Juvenile Detention head q u arte rs
that even approach h is physical c h a ra c te r is t ic s , which is
not h a rd to im agine. Some of them may be co lored , they
m ay have the sam e type of h a ir , but they w ill be su b stan
tia lly s m a lle r , they will have a youthful face.
A All rig h t.
Q L e t's assu m e fu r th e r that a t the N ashville ja il we
have a hundred in m a te s . T hese a re a d u lts . They may
[82]
be over eighteen, th e re m ay be som e that have the sam e
c h a ra c te r is t ic s , but they don't have a juvenile face.
If you w ere to a rran g e a lineup at that point, having
people with his physical c h a ra c te r is tic s but with an adult
face , having juveniles who a re sm a lle r than he is but hav
ing a juvenile face, and having M r. Biggers as one of those
p a r tic u la r people, would that be a fa ir lineup?
A I've thought about th a t. I t 's c le a r that every tim e
a p a r tic u la r suspect is questioned, if one has to, in effect,
go out and find two b ro th e rs to m ake it a fa ir te s t , would
n 't that make the en tire sy stem very cum bersom e?
I can 't com m ent on the cum bersom eness of what this
would req u ire in law enforcem ent. In the ideal case , I
would assum e, ex trem e adherence to fa irn e ss in this case
would slow down a — the p a r tic u la r enforcem ent p ro c e ss .
If you a re asking me w here I would draw a p a rtic u la r
line with re sp ec t to when i t 's fa ir and when it isn 't , I would
say it m ust be very a rb itra ry , and I would certa in ly not
feel I'm in the p a r tic u la r position alone of making that kind
of judgm ent. I'm su re the law would have to consider th is
very carefu lly .
If you ask me what is the probab ility of getting five o ther
black six teen y e a r olds weighing two hundred pounds, h av
ing youthful voices without much facial h a ir and a ll of the
o th er c h a ra c te r is tic s that w ere m entioned, so that you could
[83]
have what m ight be considered a tru ly fa ir te s t, that that
p robab ility m ight be v e ry , v e ry sm all.
If you ask me w here m ust the line be draw n, I think all
I can say righ t now is it m ust be drawn in such a way as
you do the b e st you can under the c ircu m stan ces , and
maybe the police did the b est they could under the c irc u m
stan ces , but I 'm not in any position to judge tha t.
MR. DALE: All r ig h t, thank you very much, D octor.
THE COURT: Is that all of this w itness?
MR. MELTSNER: May I ask ju s t one m ore question
with re sp ec t to tha t hypothetical?
A. 117
Dr. Irwin Pollack - Cross
A. 118
Dr. Irwin Pollack - Redirect
REDIRECT EXAMINATION
BY MR. MELTSNER:
Q Let us suppose that the police do se t up a lineup
p roced u re in which a num ber of d ifferen t p e rsons sh are
som e of the a ttrib u tes o rig inally re p o rte d by the v ictim
to belong to the c rim in a l. Is tha t, as a p ro ced u re , m ore
likely to be re lia b le than the so r t of one-on-one p ro ced u re?
A To the extent to which the o ther individuals in the
lineup do sh a re th ese c h a ra c te r is t ic s , I believe i t 's m ore
and m ore fa ir , to the extent to which you can achieve som e
kind of ideal m atch am ong a ll of them at the sam e tim e.
Q That would be b e tte r?
[84]
A That would be b e tte r , but perhaps th is is an ideal
situation which is im possib le to m eet.
Q And a final question . M r. Dale m entioned a num
b e r of assum ptions about the re c o rd . I ju s t want to get it
c le a r . Have any of those assum ptions changed your basic
conclusion as s ta ted on your d irec t exam ination as to the
re liab ility of these p ro ced u res em ployed in th is c ase?
A With re sp ec t to the re liab ility of the p ro ced u res ,
no.
MR. MELTSNER: Nothing fu r th e r .
THE COURT: All rig h t, M r. W itness, that appears
to be a l l .
WITNESS EXCUSED
MR. MELTSNER: I have no fu r th e r need fo r D r. Pol
la c k 's testim ony . If M r. Dale does not, would it be a ll
righ t if he w ere p e rm itted to rem ain in the cou rtroom ?
THE COURT: So fa r as I'm concerned .
MR. DALE: P erfec tly a ll rig h t.
THE WITNESS: Thank you, s i r .
A. 119
Flora Marie Hammonds - Direct
MR. MELTSNER: I have just one m ore w itness, and
it w ill be very sh o rt, Your Honor. I would like to call
M rs . H am m onds.
[85]
FLORA MARIE HAMMONDS,
a w itness called to te stify by and in behalf of the petitioner,
a f te r having f i r s t been duly sw orn, was exam ined and t e s
tified as follows:
DIRECT EXAMINATION
BY MR. MELTSNER:
Q M rs. Hammonds, a re you re la ted to the p e titio n er
in this c a se , A rchie N athaniel Biggers ?
A T h a t's my son.
Q Was your son liv ing a t home with you in N ashville
on the night of August 16, 1965?
A Yes, s i r , he w as.
Q And did he com e home that evening?
A Y es.
Q Would you d esc rib e what happened when he cam e
hom e?
A He cam e in and told me that he had fe ll getting over
a fence, and that he had h u rt his a rm , and I told him he
would have to go to the hosp ita l, and I c a r r ie d him to Me-
h a rry Hospital to see about it.
Q What p a r t of the hosp ita l did you go to?
A The em ergency .
Q And what happened th e re ?
A Oh, we was th e re , and they was trea tin g the p lace
on h is a rm , and then the police cam e in.
A. 120
Flora Marie Hammonds - Direct
[86]
Q Now when the police cam e, was he receiv ing t r e a t
m ent?
A Y es, he w a s .
Q And how many police officers cam e?
A Oh, le t me see , I don't rem em b er, i t was a good
many of them . Oh, I 'd say th ree o r four, and th e re was
a detective th e re a lso .
Q And what happened at that tim e ?
A They sa id that they wanted to take h im — wanted
him to take them and show them w here he had fe ll, and
he c a r r ie d them down th e re , because we followed him .
Q W here was it that he fe ll?
A On 18th and Scovel, righ t th e re a t the end of the
s t r e e t going in hom e.
Q Is tha t n ea r w here you live?
A T h a t's c lo se .
Q And le t me get th is s tra ig h t, what was your son
doing when the police o fficers a rr iv e d a t the hospital ?
A When they a rr iv e d a t the hosp ita l?
Q When you f i r s t saw the police o fficers , what was
your son doing?
A He was getting trea tm en t fo r his a rm .
Q Now a fte r the police took him to this p lace on Scovel
S tree t, what happened?
A They nev er did b rin g him home, they told us they
[87]
w ere going to b rin g him hom e, but they never did.
Q And when was the next tim e you saw him ?
A About th ree o r four o 'clock the next m orning we
went up to the ja il to try to find out w here he was.
Q Now did you re ta in an a tto rney?
A Y es, I did.
A. 121
Flora Marie Hammonds - Cross
Q What was the nam e of the a tto rney you re ta in ed ?
A Z. A lexander Looby.
Q And do you re c a ll about the tim e that you re ta ined
him ?
A It was the next m orning which would have been the
17th, and it was c lose to eight, around e ig h t— it was so m e
w here around eight o 'clock the next m orning.
Q Now w ere you ev er asked by the police a t any tim e
w hether your son could ap p ear in a lineup?
A No, I w asn 't.
Q W ere you ev er shown a w arran t?
A No, I w asn 't.
MR. MELTSNER: Your w itness.
CROSS-EXAMINATION
BY MR. DALE:
Q M rs. Ham m onds, what happened to him on the
night of August 16th? I d idn 't catch what you said .
A He was com ing hom e, and he said he fell com ing
[88]
over a fence and cut h is a rm .
Q Did he e lab o ra te on that to any extent?
A No, he ju s t sa id the dogs got a fte r him , and he
fe ll com ing over a fence.
MR. DALE: I have no fu r th e r q u estio n s .
THE COURT: All r ig h t.
WITNESS EXCUSED
MR. MELTSNER: T hat is our case , Your H onor.
THE COURT: All righ t, ca ll your f i r s t w itness.
MR. DALE: M rs. M argare t B eam er.
A. 122
MARGARET FRANCES BEAMER,
a w itness called to testify by and in behalf of the respond
ent, a f te r having f i r s t been duly sw orn, was exam ined
and te s tif ied as follows:
DIRECT EXAMINATION
BY MR. DALE:
Q M rs. Beam er, would you s ta te to the C ourt, p lease ,
m a 'am , your ad d re ss and occupation?
A 2319 M eharry Boulevard, and I'm a licensed p ra c tica l
n u rse .
Q A lic e n se d -----
A P rac tica l n u rse .
Q W ere you the p ro secu tin g w itness in the case of
the S tate of T ennessee v. A rchie N athaniel B iggers?
[89]
A Y es.
Q During the co u rse of that t r ia l , w ere you asked
to identify the defendant?
A Y es.
Q Did you a t the t r ia l identify the defendant?
A Y e s .
Q Is th is he sea ted at the counsel tab le?
A Y e s .
Q W ere you able a t the t r ia l to positive ly identify
h im ?
A Y es.
Q Was th e re a doubt in y o u r— was th e re o r was th e re
not a doubt in your m ind?
A No.
Q At the tim e of t r ia l?
A No, th e re was no doubt.
Q Could you speak up ju s t a little b it?
A No, th e re was no doubt.
Q Do you re c a ll, o r do you not, the afternoon of
August the 17th, 1965? Perhaps I should p reface that by
saying w ere you at the police station on the afternoon of
August 17, 1965?
A Y es.
Q Did you a t tha t tim e identify M r. B iggers?
A Y es.
[90]
Q Now this was p r io r to the tr ia l , was it not?
A Y e s .
Q Would you d esc rib e to the Court from your best
reco llec tio n what happened on that afternoon from the
tim e you walked up on the floor and then ju s t te ll the Court
what happened from that point on?
A I was e sco rted to a room and M r. Biggers was
walking by. Anyway, I was told they had som e su spec ts,
and if I recognized th is su sp ec t, ju s t to look a t him and
see if I could recognize him , and they had him to walk
p a s t, and I was inside the room , and I could view him
through the door, and I identified h im .
Q Did you id en tify— did you o r did you not identify
him a t that point?
A Yes, I did.
Q At what point? At what point during th is p r o
cedu re did he say anything, o r if he sa id anything?
A No, I asked the o fficers to ask him to say so m e
thing, and he rep ea ted the w ords that he was asked.
Q Do you re c a ll w hether this was befo re o r a fte r
you had identified him as the man who attacked you?
A That was a fte r I identified h im .
Q I want your b est reco llec tion on th is , M rs. Beam er,
A. 123
Margaret Frances Beamer - Direct
did you identify him before he spoke the words o r did you
identify him a fte r he spoke the w ords ?
[91]
A I identified him before he spoke the w ords.
Q Do you re c a ll why you asked the police o fficer to
have him say som ething?
A W ell, a t the tim e I was attacked, he was talking,
and he told me the sam e words that I had him to say, and
during the tim e I was attacked, he ta lked .
Q Did police o fficers b rin g suspec ts out to your house
a f te r the attack and before th is identification?
A Y es.
Q Do you re c a ll how many?
A I know th e re was sev e ra l; I'm not su re of the num
b e r , b u t-----
Q M ore than two?
A M ore than two o r th re e .
Q Did you go to the police station in addition and view
o ther suspec ts ?
A Yes, I did.
Q Did you e v e r identify any o ther su sp ec t?
A No, I d idn 't.
Q Did you look at p ic tu re s in addition ?
A Y es, I looked at p ic tu re s .
Q Photographs ?
A Y es.
Q Was th is the f i r s t tim e a fte r the a ttack , was this
the f i r s t tim e you had seen M r. B iggers?
[92]
A. 124
Margaret Frances Beamer - Direct
A Y es.
Q Do you re c a ll how you d esc rib ed M r. Biggers to
the police o fficers who answ ered your ca ll in which you
in form ed them of the a ttack ?
A. 125
A As w ell as I can re c a ll, I d escribed him as being
a teenager, and I'm not su re , but I think I gave the age
between six teen and eighteen, and I gave his weight, I'm
not su re , but I think around a hundred and eighty and two
hundred pounds, dark brow n.
Q The complexion dark brown?
A Dark brown com plexion, and I sa id he had kind of
bushy h a ir , his h a ir was kind o f— you know, not an Afro
th e y 're w earing now, but kind of bushy, and height I gave
around five ten and s ix in c h es— six feet ra th e r , I'm so rry ,
five ten and about s ix feet ta ll.
Q Do you re c a ll w hether you said anything or not p e r
ta in ing to the type of skin that he had?
A On the face had a sm ooth kind of com plexion, not
like a man tha t shaved a lot, and the voice was the voice
of a young teenage boy before they get — you know, reach
adulthood w here the voice get very deep .
Q The attack that w e 're talking about took place of
co u rse in your hom e. Would you d esc rib e , as b est you
re c a ll , the lighting in the a re a of your home w here he
f i r s t attacked you?
[93]
A W here he was f i r s t a ttacked , the light was — th ere
was no light in the k itchen . I was grabbed in the hallway
and pulled into the k itchen . He was in the kitchen, and I
was com ing out of one room , and was in the hallway, co m
ing out of a lighted room , and he was in a dark room with
no ligh t.
Q W ere th e re lights on in o ther room s ?
A Lights on in the o ther ro o m s, but not in the kitchen
which the hall was dim ly lit from the lights from the o ther
th ree ro o m s.
Q Did you see his face?
Margaret Frances Beamer - Direct
A. 126
A Y es.
Q M rs. B eam er, had you not seen M r. Biggers in
the police station on the afternoon of August 17, 1965,
could you have identified him in the courtroom during the
tr ia l?
MR. MELTSNER: Your Honor, that I w ill ju s t have
to object.
THE COURT: That probably is a little too specu lative.
MR. DALE: If Your Honor p lease , if we can ’t answ er
that question , then I'm not su re if there is any way we can
m eet one of the te s ts .
THE COURT: What was the question ? If she had not
seen him a t p r e - t r i a l -----
MR. DALE: Could she have identified him independently
of the p re tr ia l confrontation is e ssen tia lly
[94]
what it am ounts to, and how I can ask that is another q u e s
tion.
THE COURT: What te s t a re you talk ing about?
MR. DALE: I was looking for it.
MR. MELTSNER: If I may say , Your H onor, my
understanding of tha t is as a legal te s t depending on c e r
tain objective c ircu m stan ces , but not a w itn ess ' s ta te
m ent four y ears a fte r the event she could have done so m e
thing. It seem s to m e -----
MR. DALE: May it p lease the C o u rt— excuse m e, go
ahead.
MR. MELTSNER: It seem s to me to be too specu la tive
to m e rit considera tion on the point.
MR. DALE: I will a ttem pt som e objective questions
if you w ill b e a r with m e ju s t a m om ent.
THE COURT: You m ay reach it in som e m ore o b jec
tive m anner, concern ing the p r e - t r ia l identification .
Margaret Frances Beamer - Direct
A. 127
BY MR. DALE:
Q M rs. Beam er, I'm read ing from the tra n sc r ip t of
the testim ony at the s ta te tr ia l , and in response to a q u e s
tion by G eneral H ollins, the p rosecu ting attorney:
"Q A re you te lling th is ju ry today that you have
any doubt about this ? O r do you have any doubt about
th is ?
"A No, I don 't have any doubt. "
[95]
Would you te ll the C ourt, p lease , m a 'am , what you
m eant by that, if you can re c a ll?
A That I have no doubt, I mean that I am su re that
when I — see , when I f i r s t la id eyes on him , I knew that
it was the individual, because his fa c e — well, there was
ju s t som ething that I don 't think I could ever fo rg et. I
b e lie v e -----
Q You say when you f i r s t laid eyes on him , which
tim e a re you re fe r r in g to?
A When I identified h im — when I seen him in the
courthouse when I was took up to view the su spec t.
Q All r ig h t. Now le t m e ask you th is question. The
C ourt in th is case asked you th is question:
"THE COURT: All r ig h t. Is th e re any doubt in
your mind?
"A No, th e re 's no doub t."
Now what did you mean when you sa id , "No, th e re 's
no d o u b t."?
A No doubt in my mind would mean that if I had any —
was u n su re , tha t th is was not the individual, th e re would
be som e doubts, w hether I would know w hether this was
the one o r not the one. I had no doubts, because I was
su re tha t th is is the one.
Q W ere you or not identifying him in the courtroom
Margaret Frances Beamer - Direct
as the man who attacked you?
A Y es.
[96]
Q Was th e re any doubt at the tim e you testified that
he was the man who attacked you?
A No.
Q On what b asis can you te ll the Court that you have
no doubt that th is is the man who attacked you, by what
reaso n ?
A He had the sam e face, th is is the sam e man that
attacked m e, because he looks the sam e, the sam e face,
the sam e build, the sam e co lor, the sam e h a ir , and the
sam e age when I viewed him .
MR. DALE: If Your Honor p lease , I don 't see how
we can escape the n ecessity of som e suggestive testim ony
on the point that I m entioned.
THE COURT: W ell, sh e 's a lread y te s tified that she
had no doubt. What m ore can you add to tha t? And she
sa id what she based h e r testim ony on.
MR. DALE: All r ig h t, s i r .
THE COURT: Any identification testim ony is based
upon som e sub jec tive e lem ent, the appearance and o b s e r
vation.
MR. DALE: T h a t’s a ll. All r ig h t.
THE COURT: All righ t, any c ro ss-ex am in a tio n ?
MR. MELTSNER: Yes, s i r .
[97]
CROSS-EXAMINATION
BY MR. MELTSNER:
Q M rs. Beam er, you had n ev er seen M r. Biggers
b efo re the alleged a ttack , had you? He was a s tra n g e r to
you?
A. 128
Margaret Frances Beamer - Direct
A. 129
Margaret Frances Beamer - Cross
A T h a t's c o r re c t .
Q And you had never seen him until August 17th,
a fte r the a ttack?
A T h a t's c o rre c t.
Q And you m entioned when questioned by M r. Dale
that you identified him before he spoke?
A Y es.
Q W ell, am I c o r re c t that you asked the police of-
fiv e rs to have him speak?
A Y es.
Q And then what did he say?
A Words to this effect, shut up o r I 'll k ill you.
Q And his voice sounded like the voice of the ra p is t?
A That is c o r re c t .
Q And so you w ere m ore certa in in your identification,
because you h eard his voice?
A (Witness nods head).
Q May I have an answ er?
A Y es.
Q And did you ask the police officers to have him
[98]
speak as soon as you identifed him a fte r seeing him ?
A That is c o r re c t .
Q Now you said th a t the officers mentioned that they
had a su spec t that they wanted you to see . What did you
understand them to mean by the word "su spect"?
A Suspect, in th is in stance?
Q Y es .
A Someone to co m e— som eone for me to try to see
if th is was the individual.
Q Did you think they had any evidence against h im ?
A I don 't know.
Q You don 't know?
A. 130
A No.
Q Now I understand your testim ony to be that during
th is seven-m onth period , you saw a num ber of p ersons,
som e w ere brought to your house, o ther su sp ec ts , is that
c o r re c t?
A T h a t’s c o rre c t.
Q Will you d esc rib e how that would work, a police
o fficer would b rin g a man to your house, is that it?
A They brought men to the house, they brought p ic
tu re s , at tim es I went down to the police station o r e ith e r
to my house, they brought individuals by my house.
Q Now, did they b ring them one at a tim e?
A One at a tim e , y es.
Q And they would b ring them to your house and ask
[99]
you w hether th is was the m an?
A Y e s .
Q One a t a tim e?
A Y es, th a t 's the way.
Q When you went to the police s ta tion , would you go
to the hom icide division and s it in a room as you did on
August 17th?
A I'm try in g to think how -----
Q You have difficulty re c a llin g tha t?
A Because at d ifferen t tim es it o ccu rred in d ifferen t
m a n n e rs .
Q W ell, did they ju s t— but b asica lly was th e re a p r o
cedure to b rin g somebody and ask you w hether this was the
man ?
A No, at tim es they would have lineups .
Q What kind of lineups would they have?
A Oh, I 'll say about four o r five men, all d re sse d
a lik e .
Margaret Frances Beamer - Cross
A. 131
Margaret Frances Beamer - Cross
Q And th is was — this o ccu rred a t the police sta tion?
A T h a t's c o rre c t .
Q But when they would b rin g people to your house,
they would b ring a man by your house and ask you w hether
th is was the one?
A C o rre c t.
[100]
Q Now, do you rem em b er everything just as c lea rly
now as you did four y ears ago?
A No, I don 't rem em b er everything as c lea rly .
Q And so you might have meant things d ifferently
when you testified in 1965 than you re c a ll them now.
That is possib le , is n 't it?
A I don 't know.
Q You don 't know w hether it is possib le .
Now at t r ia l , as b est you can re c a ll in 1965, did you
get down off of the w itness stand and point th is man out
as the a ssa ilan t?
A No, I d idn 't get down off of the w itness stand.
Q Did you stand up and point a finger a t h im ?
A Not point a fin g er.
Q As b e st as you re c a ll , did you ever say , oh, th a t's
him , the th ird person on the righ t, o r som ething like tha t?
Did you ev er identify him in that m anner?
A I was asked to identify h im . I c an 't re c a ll w hether
I pointed my finger, but I was asked if that was the man,
and if that is him over th e re , and th e re was som e way that
I ind icated that M r. Biggers was the individual.
Q And he was the man who you saw on August the 17th?
A T h a t's c o r re c t .
MR. MELTSNER: I have no fu r th e r questions .
A. 132
Floyd Bailey - Direct
[101]
THE COURT: All righ t.
MR. DALE: I have no fu r th e r q u estio n s .
THE COURT: All rig h t, th a t's a ll, you may step down.
WITNESS EXCUSED
MR. DALE: O fficer Bailey.
FLOYD BAILEY,
a w itness called to te s tify by and in behalf of the resp o n d
ent, a f te r having f i r s t been duly sworn, was exam ined and
te s tified as follows:
DIRECT EXAMINATION
BY MR. DALE:
Q M r. Bailey, would you te ll the Court, p lease , your
occupation ?
A M em ber of the M etropolitan Police D epartm ent;
work in the CID division.
Q CID is what?
A D etective division.
Q D etective d iv ision?
A Y es, s i r .
Q W ere you in that sam e division in the sum m er of
1965?
A I w as.
Q Did you work on the case of S tate of T ennessee
[ 102]
v . A rchie N athaniel Biggers ?
A I did.
Q At that tim e , I don’t believe it was nam ed such a
case , but you w ere involved in the investigation of a c rim e
A. 133
Floyd Bailey - Direct
a t that tim e he was alleged to have com m itted, is that c o r
re c t?
A I w a s .
Q M r. Bailey, you testified at his t r ia l , I believe,
did you not?
A I did.
Q Do you rem em b er the c ircu m stan ces around the
a fte rn o o n — o r do you rem em b er the c ircu m stan ces of the
afternoon in which M rs . Beam er identified him as the man
who attacked her ?
A I do.
Q Would you d esc rib e those c ircum stances to the
C ourt, p lease?
A M rs. Beam er was picked up by me and my p a rtn e r
and brought to h ead q u arte rs , p laced in a room , and Biggers
was brought down the hall, the full length of the hall, and
c a r r ie d back.
Q By brought, what do you mean ?
A My p a r tn e r and I e sco rted him down the ha ll.
Q Was he handcuffed o r ------
A No, he w asn 't.
Q Did you have hold of his a rm o r anything?
[103]
A No.
Q W ere you in the room in which M rs. Beam er sa t
at the tim e she identified him ?
A I was a t the door of the room she was in.
Q Did you h ear anything that went on, o r did you h ear
the conversation that went on in that room ?
A Y es, I did.
Q Was th e re another lady in that room ?
A It w as, but I don 't rem em b er who she w as.
Q Do you re c a ll w hether o r not she was the v ictim of
A. 134
Floyd Bailey - Cross
ano ther attack in th a t— in N ashville?
A I don 't rem em b er.
Q You don’t rem em b er?
A No.
Q Now, do you rem em b er the c ircum stances around
M rs. B eam er's identification of M r. B iggers?
A I do.
Q Would you te ll the Court what happened then?
A When she saw him , she said that was the man that
a ttacked h e r, and then she asked som eone to have him r e
peat som e w o rd s .
Q Did he then rep ea t them ?
A He did.
Q Is th e re a — can you say without question th a t she
identified him before he was req u ired to speak the words ?
[104]
A She did.
MR. DALE: T h a t's a ll.
CROSS-EXAMINATION
BY MR. MELTSNER:
Q D etective, ju s t fo r the reco rd , would you s ta te
your age?
A Pardon ?
Q Your age?
A F o rty -e ig h t.
Q And your height ?
A F ive ten and a half.
MR. MELTSNER: Thank you.
MR. DALE: T h a t's a ll.
WITNESS EXCUSED
Proceedings
MR. DALE: T h a t's a ll of the evidence fo r the S tate,
if Your Honor p lease .
THE COURT: All r ig h t. Now do you want to argue
o ra lly , o r do you want to subm it it on b rie fs ?
MR. MELTSNER: W e've subm itted what we think is
a fa ir ly com plete b rie f, but we would like the opportunity
to file a supplem entary m em orandum .
THE COURT: All rig h t, how long do you want fo r that
purpose?
MR. MELTSNER: Ten days.
[105]
THE COURT: Will that be sufficient for you?
MR. DALE: Y es, s i r .
THE COURT: All righ t, ten days then for filing su p
plem ental b r ie f s .
MR. MELTSNER: I don 't wish to take up any m ore of
the C o u rt's tim e than is n e ce ssa ry , but I would like to
m ake a few general o bservations.
THE COURT: All righ t, go righ t ahead.
(W hereupon, o ra l argum ent was m ade by counsel for
the re sp ec tiv e p a r t ie s .)
THE COURT: All r ig h t. Well, I w ill take th is case
under advisem ent, and when I rece iv e the b r ie fs , of cou rse
I w ill go over it carefu lly and see if th e re is any basis fo r
re lie f , and you want ten d a y s , both p a r t ie s , you think that
w ill be sufficien t, and if you need to rep ly , then five days
a f te r that, e ith e r p a rty may reply to the o ther b rie f.
MR. DALE: All r ig h t, s i r .
MR. MELTSNER: Your Honor, one m ore thing, with
re sp ec t to M r. W illiam s' req u est, he asked about the p e t i
tio n e r rem ain ing in N ashville, and I asked M r. Dale, and
he sa id he had no objection to it .
THE COURT: Let the o rd e r provide fo r tha t. W here
is he in confinem ent?
A. 135
A. 136
Proceedings
MR. MELTSNER: P resen tly a t the s ta te p en iten tiary .
[106]
THE COURT: W here was he p r io r to that?
MR. DALE: Brushy Mountain.
THE COURT: I see no reason why he shouldn 't s tay
h e re pending the d isposition of the case .
MR. MELTSNER: Thank you, Your Honor.
THE COURT: All righ t, adjourn C ourt.
(W hereupon, Court was ad jou rned .)
[108]
REPORTER'S CERTIFICATE
I, G eorgella Mankin, Official C ourt R ep o rte r fo r the
United States D is tric t C ourt, Middle D is tr ic t of T ennessee ,
with offices in N ashville, hereby ce rtify that I reco rd ed
in m achine shorthand all of the p roceedings had in the
c ase of A rchie N athaniel Biggers v. Lake F . R usse ll,
W arden, T ennessee State Penitentiary , C ivil Action No.
5120, on the 4th day of N ovem ber, 1969; that these p ro
ceedings w ere reduced to typew riting by m e; and that
the foregoing is a tru e and accu ra te tra n s c r ip t of the said
p ro ceed in g s .
This the 24th day of May, 1970.
/ s / G eorgella Mankin
G eorgella Mankin
O fficial C ourt R eporter
A. 137
[fol. 1] PLAINTIFF’S EXHIBIT NO. 2
FILED: N ovem ber 4, 1969
CASE NO. 5120
BRANDON LEWIS, CLERK
BY / s / Guy W. Cooper
CURRICULUM VITA
IRWIN POLLACK
Septem ber, 1968
NAME: Irwin Pollack SEX: Male
DATE OF BIRTH: A pril 10, 1925 PLACE OF BIRTH:
Bridgeport, Connecticut
MARITAL STATUS: M arried
W IFE'S MAIDEN NAME: M arcille Kaufman
CHILDREN'S NAMES: S harron , Phyllis, Stanley
EDUCATION:
U niversity of F lo rid a , B. S ., 1942-1945
H arvard U niversity , M. S . , 1945-1946
H arvard U niversity , P h .D ., 1948-1949
POST GRADUATE TRAINING:
N ational Sciences Foundation S enior Postdoctoral R e
se a rc h Fellow , Applied Psychology R esearch Institu te ,
C am bridge, England, 1960-1961.
APPOINTMENTS:
R esearch A ssis tan t, Psychoacoustic L aboratory ,
H arvard U niversity , 1946-1948.
R esearch Psychologist, U. S. Navy E lectron ics L ab o ra
to ry , 1949.
R esearch Psychologist, S uperv iso ry R esearch Psychologist,
D irec to r, Senior R esearch Psychologist A ir F o rce O pera
tional A pplications L abora to ry (GS-11 to PL-313 to GS-15),
1949-1963.
Curriculum Vita, Irwin Pollack
R esearch Psychologist, Mental Health R esearch Institu te ,
P ro fe sso r of Psychology, D epartm ent of Psychology,
U n iversity of Michigan, 1963-presen t.
TEACHING APPOINTMENTS:
Teaching A ssis tan t, H arvard U niversity , 1947-1948.
L e c tu re r , U n iversity of M aryland extension p ro g ram ,
1956.
Sum m er Session L ec tu re r, M assachusetts Institu te of
Technology and U niversity of Michigan, 1962.
P ro fe sso r of Psychology, U niversity of Michigan, 1963-
p re se n t.
CONSULTING POSITIONS:
Consultant to Society of Automotive E ngineers, R-6
Com m ittee on A irc ra ft N oise, 1967-p resen t.
COMMITTEE ACTIVITIES:
United S tates of A m erica Standards Institu te
C hairm an, W riting Group S3-W -33, Evaluation of
Loudness of N oise
M em ber of W riting Group S2-W -49, Speech In te llig i
b ility
M em ber of W riting Group S3-W -53, T a lk e r Identification
N ational Academ y of S c ie n ce s— N ational R esearch Council
C om m ittee on H earing and B io-A coustics (CHABA),
C h arte r M em ber
C om m ittee on B io-A stronautics, A ir F o rce D esignated
M em ber
A dvisory Com m ittee to D ire c to r, Psychobiology, N a
tional Sciences Foundation, 1965-1968.
MEMBERSHIP IN PROFESSIONAL SOCIETIES:
M em ber, U. S. Delegation to In ternational S tan d ard iza
tion O rganization and In ternational E lec troacoustica l
C om m ittee, H elsinki, 1961.
A. 138
A. 139
Curriculum Vita, Irwin Pollack
A m erican Psychological A ssociation
A coustical Society of A m erica
Psychonomic Society
EDITORIAL ACTIVIEIES:
A ssociate E ditor, Perception and Psychophysics, 1967
to p re sen t.
A ssociate Editor, O rganizational Behavior and Human
P erform ance, 1967 to p re sen t.
HONORS:
Fellow , A coustical Society of A m erica, 1952.
Fellow , A m erican Psychological A ssociation, 1954.
U. S. G overnm ent Award, Sustained Superio r P erfo rm
ance, 1955.