Neil v. Biggers Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No.

WILLIAM S. NEIL, Warden,
Tennessee State Penitentiary, Nashville, Tennessee, 

Petitioner,
v.

ARCHIE NATHANIEL BIGGERS, 
Respondent.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals for the 

Sixth Circuit

Of Counsel 
DAVID M. PACK 

Attorney General

BART C. DURHAM, III 
Assistant Attorney General 

211 Supreme Court Building 
Nashville, Tennessee 37219 

Attorney for Petitioner

St. Liouis I jaw Printing Co., Inc., 411-15 N. Eightn St. 63101 314-231-4477

Z - L Q t



TABLE OF CONTENTS

Page
Opinions below .................................................................. 1
Jurisdiction ............................................................  2
Questions Presented ........................................................  2

Constitutional, Statutory and Rules Provisions In­
volved ..................................................................  2

Statement of the Case ...................................................... 5
Reasons for Granting the Writ:

1. A  4-4 affirmance by this Court of a State’s high­
est court is res judicata as to the same issue be­
tween the same parties in a future habeas corpus 
action ..............................................................  0

2. The resolution on the merits of the alleged un­
constitutional identification is inconsistent with 
previous decisions of this C ou rt............................  9

Conclusion ......................................................................  g

INDEX TO APPENDICES
Appendix

A. Biggers v. Neil, Warden, No. 20,540 (6th Cir.
1971) (opinion) ......................................................  A -l

B. Biggers v. Neil, Warden, Civil No. 5120 (M. D.
Tenn., May 4, 1970) (Order) ..............................A-39

C. Biggers v. Neil, Warden, Civil No. 5120 (M. D.
Tenn., April 17, 1970) (Order) ..............................A-46



11

D. Biggers v. Russell (Neil), Warden, Civil No.
5120 (M. D. Tenn., July 29, 1969) (Order) ........A-57

E. Biggers v. Russell (Neil), Warden, Civil No.
5120 (M. D. Tenn., May 12, 1969) (Order) ........A-58

F. Biggers v. Tennessee, 390 U.S. 1037 (1968)
(Order denying petition to rehear) ........................ A-60

G. Biggers v. Tennessee, 390 U.S. 404 (1968) ........A-61

H. Biggers v. Tennessee, 388 U.S. 909 (1967) ........A-67

I. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696
(1967) ........................................................................ A -68

TABLE OF AUTHORITIES 

Cases

Anderson v. Johnson, Warden, 390 U.S. 456 (1968).. 8, 9

Biggers v. Tennessee, 390 U.S. 404 (1968) .................. 8
Coleman v. Alabama, 399 U.S. 1 (1970) .....................  9

Durant v. Essex Company, 74 U.S. (7 Wall.) 107 
(1868) .............................................................................. 8

Etting v. United States Bank, 24 U.S. (11 Wheat.) 59 
(1826) .............................................................................. 8

Foster v. California, 394 U.S. 440 (1968) ..................... 9

Hertz v. Woodman, 218 U.S. 205 (1909) ..................... 8
Radich, Appellant v. New York, 401 U.S. 531 (1971) 8
Sanders v. United States, 373 U.S. 1 (1963) .............. 8
Stovall v. Denno, 388 U.S. 293 (1967) .........................  9

United States v. Pink, 315 U.S. 203 (1941) ....................  8



Ill

Statutes
28 U.S.C., §1254(1) .......................................................  2
28 U.S.C., §2241 .............................................................  3
28 U.S.C., §2244 ............................................................. 3>6
28 U.S.C., §2403 .............................................................  4>6

Constitution of the United States:
Fifth Amendment ......................................................  2
Fourteenth Amendment ............................................... 2

Supreme Court Rules
Rule 23 ................................................................................ 4 7



SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1971

No.

WILLIAM S. NEIL, Warden,
Tennessee State Penitentiary, Nashville, Tennessee, 

Petitioner,
v.

ARCHIE NATHANIEL BIGGERS, 
Respondent.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals for the 

Sixth Circuit

The petitioner William S. Neil, Warden, Tennessee 
State Penitentiary, respectfully prays that a writ of cer­
tiorari issue to review the judgment and opinion of the 
United States Court of Appeals for the Sixth Circuit 
entered in this proceeding on August 18, 1971.

OPINIONS BELOW

Mr. Biggers’ rape conviction was affirmed by the Ten­
nessee Supreme Court, 219 Tenn. 553, 411 S.W.2d 696 
(1967)(App. I). This Court granted certiorari, 388 U.S. 
909 (1967) (App. H), affirmed the judgment below by an 
equally divided vote, 390 U.S. 404 (1968) (App. G), and



—  2 —

denied a petition to rehear. 390 U.S. 1037 (1968) (App. 
F). The United States District Court for the Middle Dis­
trict of Tennessee granted a petition for writ of habeas 
corpus in unreported orders (Apps. B-E) and the Sixth 
Circuit affirmed in an opinion not yet reported (App. A).

JURISDICTION

The judgment of the Court of Appeals for the Sixth 
Circuit was entered on August 18, 1971, and this petition 
for certiorari is timely filed within ninety days of that 
date. This Court’s jurisdiction is invoked under 28 
U.S.C., § 1254(1).

QUESTIONS PRESENTED

1. What effect did this Court’s equally divided affirm­
ance of a state conviction after plenary consideration 
have upon subsequent District Court reconsideration, by 
collateral review in federal habeas corpus, of what Pe­
titioner contends to be the identical issue presented to this 
Court?

2. Was Respondent denied a fair trial as a result of the 
use of identification evidence allegedly the by-product of 
an unconstitutional procedure?

CONSTITUTIONAL, STATUTORY AND RULES 
PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United 
States provides in pertinent part:

“ No person shall . . .  be deprived of life, liberty, or 
property, without due process of law . . . ”

The Fourteenth Amendment to the Constitution of the 
United States provides in pertinent part:

“ No state shall make or enforce any law which 
shall abridge the privileges or immunities of citizens



—  3 —

of the United States; nor shall any state deprive any 
person of life, liberty, or property, without due proc­
ess of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”

Habeas corpus is codified in Title 28, United States 
Code, which provides in pertinent part:

§ 2241. Power to grant writ
“ (a) Writs of habeas corpus may be granted by 

the Supreme Court, any justice thereof, the district 
courts and any circuit judge within their respective 
jurisdictions . . .

“ (c) The writ of habeas corpus shall not extend 
to a prisoner unless—

4

“ (3) He is in custody in violation of the Constitu­
tion or laws or treaties of the United States . . . ”

‘ ‘§2244. Finality of Determination
(c) In a habeas corpus proceeding brought in be­

half of a person in custody pursuant to the judgment 
of a State court, a prior judgment of the Supreme 
Court of the United States on an appeal or review 
by a writ of certiorari at the instance of the prisoner 
of the decision of such State court, shall be conclusive 
as to all issues of fact or law with respect to an as­
serted denial of a Federal right which constitutes 
ground for discharge in a habeas corpus proceeding, 
actually adjudicated by the Supreme Court therein, 
unless the applicant for the writ of habeas corpus 
shall plead and the court shall find the existence of 
a material and controlling fact which did not appear 
in the record of the proceeding in the Supreme Court 
and the court shall further find that the applicant 
for the writ of habeas corpus could not have caused 
such fact to appear in such record by the exercise of 
reasonable diligence.”



—  4 —

Title 28, United States Code, further provides:

“ §2403. Intervention by United States; 
constitutional question

In any action, suit or proceeding in a court of the 
United States to which the United States or any 
agency, officer or employee thereof is not a party, 
wherein the constitutionality of any Act of Congress 
affecting the public interest is drawn in question, the 
court shall certify such fact to the Attorney General, 
and shall permit the United States to intervene for 
presentation of evidence, if evidence is otherwise ad­
missible in the case, and for argument on the question 
of constitutionality. The United States shall, subject 
to the applicable provisions of law, have all the rights 
of a party and be subject to all liabilities of a party 
as to court costs to the extent necessary for a proper 
presentation of the facts and law relating to the ques­
tion of constitutionality.”

The 1954 rules of this Court were in effect at the time 
of the certiorari grant (June 12, 1967). Rule 23, The Pe­
tition for Certiorari, remained unchanged in pertinent part 
by the 1967 amended rules, and was as follows:

“ 1. The petition for writ of certiorari shall contain 
in the order here indicated—

“ (c) The questions presented for review, expressed 
in the terms and circumstances of the case but without 
unnecessary detail. The statement of a question pre­
sented will be deemed to include every subsidiary 
question fairly comprised therein. Only the questions 
set forth in the petition or fairly comprised therein 
will be considered by the court.”

Rule 33
“ (2) (b) In any proceeding in whatever court 

arising wherein the constitutionality of any Act of



—  5 —

Congress affecting the public interest is drawn in 
question and the United States or any agency, officer 
or employee thereof is not a party, all initial plead­
ings, motions or papers in this court shall recite that 
28 U.S.C., § 2403 may be applicable and shall be served 
upon the Solicitor General, Department of Justice, 
Washington, D.C. 20530. In proceedings from any 
court of the United States as defined by 28 U.S.C., 
§ 451, such initial pleading, motion or paper shall 
state whether or not any such court has, pursuant to 
28 U.S.C., § 2403, certified to the Attorney General the 
fact that the constitutionality of such Act of Congress 
was drawn in question.”

STATEMENT OF THE CASE

The respondent Mr. Biggers was convicted of committing 
a rape at knifepoint which occurred in 1965. Seven months 
after the offense, while Mr. Biggers was being detained as 
a suspect in another rape case, the victim identified him 
as her assailant. The subsequent conviction based on that 
identification was affirmed by the Tennessee Supreme 
Court. This Court granted certiorari, heard oral argu­
ment, and affirmed the conviction by a four to four vote. 
Plenary consideration was given before this Court to all 
aspects of the identification question.

Shortly thereafter, Mr. Biggers filed a federal habeas 
corpus action. The District Court for the Middle District 
of Tennessee after an evidentiary hearing found the po­
lice station identification improper and voided the convic­
tion. The Sixth Circuit affirmed, primarily because the 
judges who wrote the majority opinion thought the Dis­
trict Judge decided a different question than that pre­
sented this Court on certiorari. Judge Brooks in dissent 
felt that this Court had indeed decided the precise ques­
tion so as to import finality in the matter.



—  6 —

REASONS FOR GRANTING THE WRIT

1. A 4-4 Affirmance by This Court of a State’s Highest 
Court Is Res Judicata as to the Same Issue Between the 
Same Parties in a Future Habeas Corpus Action.

The Sixth Circuit incorrectly decided important federal 
questions in conflict with a specific previous ruling by this 
Court and, further, in conflict with a constitutional stat­
ute. The Court has so far departed from applicable law 
as to call for an exercise of this Court’s power of super­
vision.

The District Judge ordered a new trial untainted by the 
identification procedures at the police station. The Court 
indicated that it would not apply 28 U.S.C. § 2244(c), 
supra, and if it did apply that statute, under the facts of 
this case, it might be unconstitutional (App. B). The 
Sixth Circuit did not mention this statute in arriving at 
its decision. It is the position of Petitioner that the stat­
ute does apply and both lower courts improperly dis­
regarded it.

Pursuant to Rule 33(2) (b) of this Court, it appearing 
that 28 U.S.C. § 2403 may be applicable, three copies of 
this petition have been served upon the Solicitor General, 
Department of Justice, Washington, D. C. 20530. No court 
below has certified that the constitutionality of 28 U.S.C. 
§ 2244(c) was drawn in question.

The Court of Appeals majority opinion gave three rea­
sons why it thought the identification matter could be adju­
dicated in federal habeas corpus despite this Court’s pre­
vious affirmance. All three reasons are erroneous. They 
are as follows:



—  7 —

a) The District Judge did not decide the same question 
as this Court did.

It is said below that different facts were considered on 
federal habeas corpus than were considered by this Court 
on certiorari. The majority points to language in the peti­
tion for certiorari which mentions voice identification. 
Their conclusion that the certiorari grant was so very nar­
row overlooks Rule 23 of this Court which says that the 
statement of a question presented is deemed to include 
every subsidiary question fairly comprised therein.

Specifically, the argument is that this Court considered 
only voice identification, whereas the District Court con­
sidered the totality of the circumstances. With the excep­
tion of certain language heretofore noted respecting voice 
identification in the certiorari petition, the parties in their 
briefs, oral arguments, petition to rehear, and again in the 
court below, have always given plenary treatment to the 
identification question.

The District Judge sought to avoid the adjudication by 
this Court by saying that the voice identification took place 
during a show-up and since he found the show-up proce­
dure unconstitutional, he need not reach the voice identifi­
cation. Yet implicit in this Court’s affirmance of the State 
conviction was the fact that it was necessary for this Court 
to consider the constitutionality of the former in order to 
adjudicate the latter.

b) Res judicata does not apply in the usual sense under 
the facts of this case.

This was the second reason the Sixth Circuit gave in 
affirming the District Judge. It is true that res judicata 
does not apply to a federal habeas corpus action. Sub­
sequent decisions may be retroactive. New evidence may



—  8 —

be discovered. The Sixth Circuit was correct in stating 
the general principle but applied this principle improperly. 
It should have been persuasive to the lower courts that 
a constitutional claim that has been thoroughly thrashed 
out as was the case here has been settled. There should 
be finality between these two parties at least with respect 
to this issue. Sanders v. United States, 373 U.S. 1 (1963).

c) The equally divided affirmance means only that the 
judgment below remained in effect.

The majority said, “ As we read these decisions, the 
equally divided vote of the United States Supreme Court 
in Biggers v. Tennessee, 390 U.S. 404 (1968), means only 
that ‘ the judgment of [the Supreme Court of Tennessee] 
remains in effect citing Anderson v. Johnson, Warden, 
390 U.S. 456 (1968). This is an oversimplification.*

This Court in the Biggers case gave plenary considera­
tion to the identification question and affirmed the 
Tennessee Supreme Court. To the Petitioner, an affirm­
ance means that the judgment below is affirmed.

To allow it to be overturned the next day would render 
the affirmance meaningless. Judge Brooks’ dissent cites 
a number of cases which he believes hold that an equal 
division affirmance means a conclusive decision on the 
facts. Leading cases are Etting v. United States Bank, 
24 U.S. (11 Wheat.) 59 (1826); Durant v. Essex Com­
pany, 74 U.S. (7 Wall.) 107 (1868); Hertz v. Woodman, 
218 U.S. 205 (1909); and United States v. Pink, 315 U.S. 
203 (1941). The fact that the major authorities are so 
old and the question is unsettled militates in favor of a

* This is accepted as an affirmance by others including the 
Government Printing Office in its slip opinions. An example is 
the affirmance by an equally divided court in Radich Appel­
lant v. New York, 401 U.S. 531 (1971).



—  9 —

grant of certiorari to decide this important question. The 
only Twentieth Century authority the court below was 
able to muster was Anderson v. Johnson, Warden, 390 
U.S. 456 (1968).

2. The Resolution on the Merits of the Alleged Uncon­
stitutional Identification Is Inconsistent With Previous 
Decisions of This Court.

The identification was made in 1965 when Mr. Biggers 
was shown to the victim at the police station. The lower 
court incorrectly applied the totality of the circumstances 
test discussed in Stovall v. Denno, 388 U.S. 293 (1967), 
and other lineup and show-up cases. See, e.g., Coleman 
v. Alabama, 399 U.S. 1 (1970), and Foster v. California, 
394 U.S. 440 (1968). Four Justices of this Court have so 
thought as indicated by their vote for affirmance when 
this same issue was here before.

CONCLUSION

A  writ of certiorari should issue to review the judg­
ment and opinion of the Sixth Circuit.

Respectfully submitted

BART C. DURHAM, III 
Assistant Attorney General 

211 Supreme Court Building 
Nashville, Tennessee 37219 

Telephone (615) 741-2091 
Counsel for Petitioner

Of Counsel 
DAVID M. PACK 

Attorney General



APPENDIX



—  A -l —

APPENDIX A

No. 20540

United States Court of Appeals 
for the Sixth Circuit

Archie Nathaniel Biggers,
Petitioner-Appellee,

v.

William S. Neil, Warden, Tennes- ” 
see State Penitentiary, Nashville,
Tennessee,

Respondent-Appellant. -/

Decided and Piled August 18, 1971

Before: Edwards, McCree and Brooks, Circuit Judges.

Edwards, Circuit Judge. In this case we are asked by 
the State of Tennessee to review and reverse the issuance 
of a writ of habeas corpus sought by petitioner Biggers 
in the United States District Court for the Middle District 
of Tennessee. After a full hearing and after review of the 
full record of the proceedings in the state courts of Ten­
nessee wherein Biggers had been convicted of rape and 
sentenced to 20 years in Tennessee’s State Vocational 
Training School, the District Judge found that identifica­
tion procedures employed by Nashville police and subse­
quently made the subject of extensive testimony at trial 
had been so essentially unfair as to represent a depriva­
tion of appellant’s federal constitutional right to due 
process of law. He ordered Tennessee either to retry 
appellant or release him.

The District Court found the facts pertinent to issuance 
of the writ as follows:

A p p e a l  from the 
United States Dis­
trict Court for the 
Middle District of 
Tennessee, Nash­
ville Division.



—  A-2 —

“ On the evening of January 22, 1965, Mrs. Mar­
garet Beamer was attacked at knife-point by an in­
truder who broke into her home. Mrs. Beamer’s 
screams aroused her thirteen-year old daughter who 
rushed to the scene and also began to scream. At this 
point, the intruder is alleged to have said to Mrs. 
Beamer, ‘ You tell her to shut up, or I ’ll kill you 
both.’ This Mrs. Beamer did, whereupon she was 
taken from the house to a spot two blocks away and 
raped. The entire episode occurred in very dim light 
and the rape itself occurred in moonlight. As a re­
sult, Mrs. Beamer could give only a very general 
description of her assailant, describing him as being 
fat and flabby with smooth skin, bushy hair and a 
youthful voice.

“ Over a seven month period following the crime 
the police showed Mrs. Beamer various police photo­
graphs and had her attend several ‘ line-ups’ and 
‘ show-ups.’ However, the victim was unable to iden­
tify any of the persons shown to her as being her 
assailant. Finally, on August 17, 1965, petitioner was 
arrested as a suspect in the rape of another woman. 
While petitioner was being detained in connection 
with that case the police asked Mrs. Beamer to come 
to the police station to ‘ look at a suspect.’ The iden­
tification process employed at this point was called 
a show-up.

# # #
“ At the instant show-up Mrs. Beamer identified 

petitioner as being her assailant. As to what tran­
spired at the show-up, there is some conflict between 
the testimony given by Mrs. Beamer at the trial and 
that given by her at the evidentiary hearing held in 
this court on October 30, 1969. In testimony given at 
the trial, Mrs. Beamer testified that on viewing the 
petitioner the ‘ first thing’ that made her think he



—  A-3 —

might be her assailant was his voice. However, at the 
October hearing, Mrs. Beamer testified that she iden­
tified petitioner positively prior to having him speak 
the words spoken by Mrs. Beamer’s attacker more 
than seven months earlier during the crime— ‘ You 
tell her to shut-up or I ’ll kill you both.’ There is also 
conflict between the testimony given by police officers 
at the trial and that given by them at the October 
hearing as to whether or not identification of peti­
tioner was made before or after he was asked to 
speak these words.

“ At any rate, petitioner was identified at this 
show-up as being Mrs. Beamer’s attacker, and the 
subsequent indictment and conviction of petitioner 
was based almost exclusively upon this station house 
identification.1

The District Judge reviewed this record on a legal 
standard recently reiterated by the United States Supreme 
Court in language which is directly applicable here:

“ In United States v. Wade, 388 U. S. 218 (1967), 
and Gilbert v. California, 388 U. S. 263 (1967), this 
Court held that because of the possibility of unfair­
ness to the accused in the way a lineup is conducted, 
a lineup is a ‘ critical stage’ in the prosecution at 
which the accused must be given the opportunity to 
be represented by counsel. That holding does not, 
however, apply to petitioner’s case, for the lineups 
in which he appeared occurred before June 12, 1967. 
Stovall v. Denno, 388 U.S. 293 (1967). But in de­
claring the rule of Wade and Gilbert to be applicable 
only to lineups conducted after those cases were de­
cided, we recognized that, judged by the ‘ totality of

,!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-4 —

the circumstances,’ the conduct of identification pro­
cedures may be ‘ so unnecessary suggestive and con­
ducive to irreparable mistaken identification’ as to 
be a denial of due process of law. Id., at 302. See 
Simmons v. United States, 390 U.S. 377, 383 (1968); 
cf. P. Wall, Eye-Witness Identification in Criminal 
Cases; J. Frank & B. Frank, Not Guilty; 3 J. Wig- 
more, Evidence, § 786a (3d ed. 1940); 4, id., §1130.”  
Foster v. California, 394 U.S. 440, 442 (1968).

Employing the term “ show-up”  to refer to a situation 
where police bring a single suspect before a victim of 
crime for identification purposes, the District Judge held:

“ On this basis the Court must conclude that the 
circumstances here present are not such as to warrant 
the show-up procedure and, consequently, that its use 
at petitioner’s trial denied him due process of law.

# *  *

[TJhere is no indication that a truly concerted effort 
was made to produce suitable subjects for a line-up. 
Aside from a phone call to the juvenile home and a 
screaming of Metro Jail inmates no other efforts were 
made. There are several other prison facilities in the 
area and there is no evidence that any effort was 
made to screen them for subjects. The Court sees no 
reason why this could not have been done in order to 
maximize the fairness of the identification process. 
Here, there was no evidence of any death-bed urgency 
as in Stovall which would have precluded the police 
from delaying the identification procedure until a 
suitable line-up could have been arranged. The crime 
was seven months old, the victim was fully recovered 
and well, and there are no other indications that the 
ends of justice demanded an immediate show-up 
rather than a much more reliable line-up. Further-



—  A-5 —

more, none of the other circumstances which the above 
discussed cases indicate may justify a show-up ex­
isted in the instant case. The evidence clearly shows 
that the complaining witness did not get an oppor­
tunity to obtain a good view of the suspect during 
the commission of the crime.2 Also, the show-up con­
frontation was not conducted near the time of the 
alleged crime, but, rather, some seven months after 
its commission.3 Finally the witness in the instant 
case was unable to give either an independent photo­
graphic identification of the suspect or a good physi­
cal description of her assailant.4 The nature of the 
show-up as conducted in this case—with the great 
lapse of time between the crime and the identification, 
the hesitancy of the witness in identifying the peti­
tioner,5 the circumstances of the stationhouse con­
frontation coupled with Mrs. Beamer’s knowledge 
that petitioner was thought by police to be her as­
sailant,—tended to maximize the possibility of mis- 
identification of the petitioner. True, it may have 
been more convenient for the police to have a 
show-up. However, in matters of constitutional due 
process where police convenience is balanced against 
the need to extend basic fairness to the suspect in a 
criminal case, the latter value should always outweigh

“ 2 The only other eye-witness, Mrs. Beamer’s daughter 
could not identify Biggers. And see, the case o f United 
States ex rel. Garcia v. Follette, supra [417 F.2d 709 (2d Cir. 
1969)] and accompanying text and cases.

“ 3 See the case of United States ex rel. Williams v. La- 
Vallee, supra [415 F.2d 643 ( 2d Cir. 1969), cert, denied 397 
U.S. 997 (1971)] and accompanying text and cases.

“ 4 See the case of United States v. Thompson, supra [417 
F.2d 196 (4th Cir. 1969), cert, denied, 396 U.S. 1047 (1970)] 
and accompanying text and cases.

“ 5 See United States v. Gilmore, supra [398 F.2d 679 ( 7th 
Cir. 1968)] and accompanying text.”  (Footnotes in quotation.)



—  A-6 —

the former. In this case it appears to the Court that 
a line-up, which both sides admit is generally more 
reliable than a show-up, could have been arranged. 
The fact that this was not done tended needlessly to 
decrease the fairness of the identification process to 
which petitioner was subjected.

“ Due process of law and basic fairness demand that 
the most reliable method of identification possible be 
used in a criminal case. See, Simmons v. United 
States, supra, [390 U.S. 377 (1967)] at 383-384. The 
conduct of the show-up in this case created an atmos­
phere which was so suggestive as to enhance the 
chance of misidentification and hence constituted a 
violation of due process.

“ Clearly, this identification did not amount to a 
harmless error, since the victim’s identification of 
petitioner was virtually the only evidence upon which 
the conviction was founded. See, Chapman v. Cali­
fornia, 386 U.S. 18 (1966).

# # *
“ Accordingly, judgment will be entered granting 

the application of Archie Nathaniel Biggers for a 
writ of habeas corpus, voiding the conviction ob­
tained in the state court, and discharging the peti­
tioner from custody after the state has had a reason­
able time to retry him upon the same charge, any such 
new trial to be unaffected by Mrs. Beamer’s station- 
house identification and the testimony of the police 
officers who were present when it took place.’ Biggers 
v. Tennessee, supra, at 409, [390 U.S. 404 (1968)].

We too have reviewed the state trial court record and 
the appellate record above that, as well as somewhat dif­
ferent transcript developed in the testimony before the 
District Judge. We believe the record does not allow us to



—  A-7 —

find that the conclusions of fact of the District Judge are 
clearly erroneous.

In addition, we find no error in the District Judge’s un­
derstanding of the principles of due process of law as they 
apply to identification proceedings prior to decision of the 
Wade,1 Gilbert1 2 cases. Normally this would mean affirm­
ance of the judgment on the careful opinion written by 
Judge Miller3 in the court below.

What divides our panel, however, is the effect of the 
direct appeal proceedings which preceded the instant fed­
eral habeas corpus case. These included affirmance of ap­
pellant Biggers’ conviction by the Supreme Court of Ten­
nessee, a grant of certiorari by the United States Supreme 
Court, and the subsequent affirmance of the decision of 
the Supreme Court of Tennessee by an equally divided 
vote of the membership of the United States Supreme 
Court. Our brother finds in the appellate proceedings 
which culminated with a 4-4 affirmance by the United 
States Supreme Court a final adjudication of all due 
process issues arising out of the pretrial identification 
measures employed in relation to appellant Biggers. As 
we understand the matter, he regards the 4-4 vote as the 
expression of a final federal view upon the critical due 
process question involved in this appeal, and believes that 
it precluded the District Judge from entertaining, taking 
testimony on, or making findings of fact in relation to the 
pretrial identification process in the course of appellant 
Biggers’ petition for a federal writ of habeas corpus.

There are three reasons which compel our disagree­
ment:

1 United States v. Wade, 388 U.S. 218 (1967).

2 Gilbert v. California, 388 U.S. 263 (1967).

3 Judge William E. Miller is now a member of the United States 
Court o f Appeals for the Sixth Circuit.



—  A-8 —

First, the District Judge decided a different question 
than that which had been presented to the United States 
Supreme Court on certiorari.

The question upon which certiorari was granted as 
stated in the Application for Certiorari was:

“ The petitioner, a 16 year-old Negro boy, was com­
pelled by the police, while alone in their custody at 
the police station, to speak the words spoken by a 
rapist during the offense almost eight months earlier 
for voice identification by the prosecutrix.

“ Was the denial of petitioner’s right to personal 
dignity and integrity by the police, and the failure to 
give him benefit of counsel, provide him with a line­
up, or with any other means to assure an objective, 
impartial identification of his voice by the prosecutrix 
a violation of petitioner’s Fifth, Sixth and Fourteenth 
Amendment rights'?”  (Emphasis added.)

As is clear from the quotation below from Judge 
Miller’s opinion, he expressly did not decide the effect of 
voice identification, except perhaps as a portion of “ the 
totality of circumstances”  of an impermissibly suggestive 
show-up:

“ [T]he Court finds it unnecessary to reach the is­
sue of whether voice identification as used here 
amounted in itself to a violation of due process. It 
may be that the validity of such identification should 
normally be left to the jury. Since the voice identifica­
tion took place during the show-up and the show-up 
procedure itself is unconstitutional as employed in 
this case, there is no reason to reach the specific is­
sue raised concerning voice identification.”

While obviously four members of the court felt that the 
grant of certiorari opened the door for consideration of a



—  A-9 —

broad due process question, it is entirely possible that 
some or all of the four members who voted against re­
versal did so solely on the voice identification issue 
squarely represented by the application for certiorari.4

Secondly, as we understand the controlling decisions of 
the United States Supreme Court, we believe that the 
doctrine of res judicata does not apply in the usual sense 
in federal habeas corpus proceedings. Fay v. Noia, 372 
U.S. 391 (1963); Sanders v. United States, 373 U.S. 1 
(1963); Townsend v. Sain, 372 U.S. 293 (1963).

In Fay v. Noia the Supreme Court said:

“ The breadth of the federal courts’ power of inde­
pendent adjudication on habeas corpus stems from 
the very nature of the writ, and conforms with the 
classic English practice. As put by Mr. Justice Holmes 
in his dissenting opinion in Frank v. Mangum, supra, 
at 348: ‘ I f the petition discloses facts that amount to 
a loss of jurisdiction in the trial court, jurisdiction 
could not be restored by any decision above.’ It is of 
the historical essence of habeas corpus that it lies to 
test proceedings so fundamentally lawless that im­
prisonment pursuant to them is not merely erroneous 
but void. Hence, the familiar principle that res judi­
cata is inapplicable in habeas proceedings, see, e. g., 
Barr v. Burford, 339 U.S. 200, 214; Salinger v. Loisel, 
265 U.S. 224, 230; Frank v. Mangum, 237 U.S. 309, 
334; Church, Habeas Corpus (1884), §386, is really 
but an instance of the larger principle that void judg­
ments may be collaterally impeached. Restatement, 
Judgments (1942), §§ 7, 11; Note, Res Judicata, 65

4 Since certiorari was granted on the issue o f voice identifica­
tion, the briefs presented before the Supreme Court (quoted at 
length in Judge Brooks’ dissent) could not expand the scope of the 
Supreme Court’s consideration merely by discussing broader due 
process questions.



— A-10 —

Harv. L. Eev. 818, 850 (1952). Cf. Windsor v. Mc- 
Veight, 93 U. S. 274, 282-283. So also, the traditional 
characterization of the writ of habeas corpus as an 
original (save perhaps when issued by this Court) 
civil remedy for the enforcement of the right to per­
sonal liberty, rather than as a stage of the state 
criminal proceedings or as an appeal therefrom, em­
phasizes the independence of the federal habeas pro­
ceedings from what has gone before. This is not to say 
that a state criminal judgment resting on a constitu­
tional error is void for all purposes. But conventional 
notions of finality in criminal litigation cannot he 
permitted to defeat the manifest federal policy that 
federal constitutional rights of personal liberty shall 
not he denied without the fullest opportunity for plen­
ary federal judicial review.”  Fay v. Noia, supra at 
422-24. (Emphasis added.) (Footnotes omitted.)

In Sanders, the Supreme Court discussed the same 
principle:

‘ ‘ At common law, the denial hy a court or judge of 
an application for habeas corpus was not res judicata. 
King v. Suddis, 1 East 306, 102 Eng. Rep. 119 (K. B. 
1801); Burdett v. Abbot, 14 East 1, 90, 104 Eng. Rep. 
501, 535 (K. B. 1811); Ex parte Partington, 13 M. & 
W. 679, 153 Eng. Rep. 284 (Ex. 1845); Church, 
Habeas Corpus (1884), §386; Ferris and Ferris, Ex­
traordinary Legal Remedies (1926), §55. ‘ A  person 
detained in custody might thus proceed from court 
to court until he obtained his liberty.’ Cox v. Hakes, 
15 A. C. 506, 527 (H. L., 1890). That this was a prin­
ciple of our law of habeas corpus as well as the Eng­
lish was assumed to he the case from the earliest 
days of federal habeas corpus jurisdiction. Cf. Ex 
parte Burford, 3 Cranch 448 (Chief Justice Mar­
shall). Since then, it has become settled in an un­
broken line of decisions. Ex parte Kaine, 3 Blatchf.



— A -ll —

1, 5-6 (Mr. Justice Nelson in Chambers); In re 
Kaine, 14 How. 103; Ex parte Cuddy, 40 F. 62, 65 
(Cir. Ct. S. D. Cal. 1889) (Mr. Justice F ield ); Frank 
v. Mangum, 237 U.S. 309, 334; Salinger v. Loisel, 265 
U. S. 224, 230; Waley v. Johnston, 316 U. S. 101; 
United States ex rel. Accardi v. Shaugh/nessy, 347 
U. S. 260, 263, n. 4; Heflin v. United States, 358 U. S. 
415, 420 (opinion of Mr. Justice Stewart) (dictum); 
Powell v. Sacks, 303 F.2d 808 (C. A. 6th Cir. 1962). 
Indeed, only the other day we remarked upon ‘ the 
familiar principle that res judicata is inapplicable in 
habeas proceedings.’ Fay v. Noia, 372 U. S. 391, 423.

“ It has been suggested, see Salinger v. Loisel, 
supra, at 230-231, that this principle derives from the 
fact that at common law habeas corpus judgments 
were not appealable. But its roots would seem to go 
deeper. Conventional notions of finality of litigation 
have no place where life or liberty is at stake and in­
fringement of constitutional rights is alleged. I f  ‘ gov­
ernment . . . [is] always [to] be accountable to the 
judiciary for a man’s imprisonment,’ Fay v. Noia, 
supra, at 402, access to the courts on habeas must not 
be thus impeded. The inapplicability of res judicata 
to habeas, then, is inherent in the very role and fu/nc- 
tion of the writ.”  Sanders v. United States, supra at 
7-8. (Emphasis added.) (Footnotes omitted.)

Thirdly, we do not believe that logically or historically 
a 4-4 division of the United States Supreme Court can be 
held to represent any federal adjudication of appellant’s 
federal constitutional claims on the merits.

An equal division of an appellate court does not settle 
any principle of law or issue of fact for that court. It rep­
resents affirmance of the judgment appealed from because 
there were insufficient votes for reversal.

Supreme Court opinions which we believe to be settled 
law demonstrate both principles:



—  A-12

“ In the very elaborate arguments which have been 
made at the bar, several cases have been cited which 
have been attentively considered. No attempt will be 
made to analyze them, or to decide on their applica­
tion to the case before us, because the judges are 
divided respecting it. Consequently, the principles of 
law which have been argued cannot be settled; but 
the judgment is affirmed, the court being divided in 
opinion upon it.”  Etting v. United States Bank, 24 
U.S. 57, 76 (1826). (Emphasis added.)

“ In cases of appeal or writ of error in this court, 
the appellant or plaintiff in error is always the mov­
ing party. It is affirmative action which he asks. The 
question presented is, shall the judgment, or decree, 
be reversed? If the judges are divided, the reversal 
cannot be had, for no order can be made. The judg­
ment of the court below, therefore, stands in full 
force. It is, indeed, the settled practice in such case 
to enter a judgment of affirmance; but this is only 
the most convenient mode of expressing the fact that 
the cause is finally disposed of in conformity with the 
action of the court below, and that that court can 
proceed to enforce its judgment. The legal effect 
would be the same if the appeal, or writ of error, 
were dismissed.”  Durant v. Essex Co., 74 U.S. 107, 
112 (1868). (Emphasis added.)

“ Four members of the Court would reverse. Four 
members of the Court would dismiss the writ as im- 
providently granted. Consequently, the judgment of 
the United States Court of Appeals for the Sixth 
Circuit remains in effect.”  Anderson v. Johnson, 
Warden, 390 U.S. 456 (1968). (Emphasis added.)

As we read these decisions, the equally divided vote of 
the United States Supreme Court in Biggers v. Tennessee, 
390 U.S. 404 (1968), means only that “ the judgment of



—  A-13 —

[the Supreme Court of Tennessee] remains in effect.”  
Anderson v. Johnson, supra, at 456. There is, of course, 
no doubt that federal habeas corpus allows for subsequent 
federal review of claims of federal constitutional viola­
tions after final state court judgment. And it is clear from 
the opinion of the Supreme Court of Tennessee, 411 S.W. 
2d 696 (1967), that it neither considered nor decided the 
federal constitutional validity of the “ show-up”  which the 
District Judge on habeas found invalid.

The judgment of the District Court is affirmed.

Brooks, Circuit Judge, dissenting. I respectfully dissent. 
As indicated in the majority opinion, this is an appeal by 
the State of Tennessee from an order of the District 
Court granting petitioner-appellee, Archie Nathaniel Big- 
gers, a writ of habeas corpus. Petitioner Biggers was 
convicted in state court for the crime of rape. Upon appeal 
to the Supreme Court of Tennessee the conviction was 
affirmed. Biggers v. State, 219 Tenn. 553, 411 S.W.2d 696 
(1967), rein, denied March 1, 1967. An appeal to the United 
States Supreme Court followed. Certiorari was granted, 
388 U.S. 909 (1967), and the Supreme Court affirmed the 
judgment of the Supreme Court of Tennessee by an 
equally divided Court. Biggers v. Tennessee, 390 U.S. 404 
(1967), reh. den. 390 U.S. 1037 (1967). Petitioner then 
brought this action for a writ of habeas corpus. The Dis­
trict Court granted the writ, basing its decision to set 
aside petitioner’s state conviction upon its conclusion that 
the totality of circumstances surrounding petitioner’s pre­
trial identification presented a significant possibility of 
irreparably mistaken identification,1 and, therefore, peti­

1 Petitioner’s identification preceded the decisions in United 
States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 
388 U.S. 263 (1967), and the standards established by those cases 
are not to be applied retroactively, Stovall v. Denno, 388 U S 293 
(1967).



—  A-14 —

tioner’s constitutional due process rights were violated 
when this identification (the sole identification evidence) 
was testified to by the police at the state trial. A  number 
of other constitutional challenges were raised, however, 
since the District Court concluded that the pretrial iden­
tification prejudiced petitioner’s constitutional rights, it 
did not reach the merits of the other claims. For reasons 
hereafter stated, I would reverse the judgment and re­
mand to the District Court for consideration of the other 
claims raised by the petition for habeas corpus.

The State of Tennessee has raised two issues on this 
appeal. First, whether the District Court properly enter­
tained the petition for habeas corpus in light of the United 
States Supreme Court’s affirmance of petitioner’s con­
viction. Second, whether petitioner was denied a fair trial 
as a result of the use of the identification evidence alleg­
edly the by-product of an unconstitutional identification 
procedure. The District Court decided both issues in favor 
of petitioner Biggers, and the State of Tennessee contends 
both conclusions are erroneous. While the issues as for­
mulated by the State of Tennessee generally convey the 
nature of the questions under review, they do not ac­
curately delineate the legal controversy involved. Thus, 
there is really no doubt that the District Court had the 
power to entertain the petition for habeas corpus, how­
ever, the essence of the dispute is whether the power of 
the court to collaterally review petitioner’s state convic­
tion extended to the issue of the constitutional infirmity 
of the pretrial identification procedure. And the question 
which divides this Court is what effect, if any, did the 
United States Supreme Court’s equally divided affirm­
ance of petitioner’s state conviction have upon subsequent 
District Court reconsideration, by collateral review, of the 
identical issue presented to the Supreme Court. I view 
the crucial issue in this case as essentially one of litigious 
finality in criminal matters. See Bator, Finality in Grim-



—  A-15 —

inal Law and Federal Habeas Corpus for State Prisoners, 
76 Harv. L. Rev. 441 (1963), for a discussion of relevant 
policy considerations.

The District Court’s conclusion on the matter of finality 
is summed up by its holding that:

“ The fact that petitioner’s conviction was tech­
nically affirmed by reason of the United States Su­
preme Court’s even division of opinion is of no con­
sequence here since the merits of the claim were not 
adjudicated. Even if they had been adjudicated, 
Sanders shows that those claims would not have been 
automatically barred from consideration by this Court 
in a habeas corpus proceeding.”

The District Court, as well as the majority opinion con­
strue the language in Sanders v. United States, 373 U.S. 
1 (1962), and Fay v. Noia, 372 U.S. 391 (1962), that prin­
ciples of “ res judicata are inapplicable in habeas proceed­
ings”  to mean that a District Court has jurisdiction to 
entertain any and all claims raised by a habeas corpus 
petition. However, I do not interpret that language em­
ployed in Sanders and Noia, supra, to mean there is no 
finality in a criminal matter. Clearly a criminal defend­
ant having had a particular issue fully litigated first in 
state court and then federal court, simply cannot turn 
around upon an adverse resolution of the issue and start 
the whole process of litigating the question again. The 
point is well taken, and I do not see a difference of views 
on the question, that res judicata will not bar the criminal 
defendant from beginning a habeas corpus proceeding in 
the United States District Court which raises new issues 
or issues not fully litigated in the state or federal courts. 
However, logic and precedent dictate that a defendant is 
collaterally estopped from relitigating the merits of an 
issue plenarily litigated and resolved on the merits against 
him. See Gaitan v. United States, 295 F.2d 277, 280 (10th



—  A-16 —

Cir. 1961), cert, denied 369 U.S. 857 and 9 A.L.R.3d 213, 
discussing the confusion resulting from the indiscriminate 
use of res judicata nomenclature. Also see, United States 
ex rel. Schnetzler v. Follette, 406 F.2d 319, 322 (2nd Cir. 
1969), cert, denied 395 U.S. 926, basing a similar holding 
on the principle of stare decisis.

As has been indicated, the difficult question dividing this 
Court is whether the issue of the constitutional infirmity 
of the pretrial identification procedure has been fully 
litigated. That is, was the equally divided affirmance by 
the United States Supreme Court of petitioner Biggers’ 
conviction an adjudication on the merits of the pretrial 
identification issue. The majority feels that the constitu­
tionality of the entire identification procedure had not 
been scrutinized by the Supreme Court in the original 
appeal because 1) the District Judge felt he was deciding 
a different question than that presented to the Supreme 
Court, that is, the District Judge concentrated his atten­
tion on the legality of the show-up rather than on the 
constitutionality of the voice identification; 2) the applica­
tion for certiorari filed in the Supreme Court by petitioner 
stresses only the constitutionality of the voice identifica­
tion; and 3) there is no positive indication in Mr. Justice 
Douglas’ dissenting opinion in Biggers v. Tennessee, 390 
U.S. 404 (1968), that more than four Justices considered 
a “ broad due process question” . I disagree and believe 
the record simply does not support the majority’s con­
clusion that the constitutionality of the entire pretrial 
identification procedure was not wholly reviewed by the 
Supreme Court.

First, I fail to see what significance can be attached to 
the fact that the District Court felt that it was deciding 
a different question than that which was presented to the 
Supreme Court. Just because the District Court took 
special interest in the legality of the show-up in assessing 
the “ totality of circumstances”  does not mean the Su­



—  A-17 —

preme Court ignored consideration of that fact or con­
centrated solely on the voice identification in applying the 
“ totality”  test. Moreover, the appellate record shows 
that the Supreme Court had before it all facets of the 
identification procedure in reviewing the case on cer­
tiorari. Thus, I see no importance in the fact that the 
District Court chose to emphasize a previously considered 
aspect of the totality of the identification procedure in 
determining its constitutionality.

Secondly, I find absolutely no support in the Supreme 
Court appellate record for the majority’s position that 
Biggers’ application for certiorari limited the Court’s 
review only to the constitutionality of the voice identifica­
tion as, quite to the contrary, the record clearly shows 
that the entire spectrum of factors surrounding the iden­
tification procedure was presented in a broad due process 
challenge to the conviction. As a preliminary observa­
tion, it should be emphasized that even on this appeal 
petitioner had admitted in his brief that the Supreme 
Court reviewed the broad due process question. In foot­
note five of petitioner’s brief it is stated:

“ The [Supreme] Court heard arguments and con­
sidered briefs with respect to whether Biggers’ Fifth 
and Fourteenth Amendment rights had been abridged 
in (1) his identification violated the Due Process 
Clause under the totality of circumstances test adopted 
in Stovall v. Denno, 388 U.S. 293 (1967) and (2) the 
use at trial of words which Biggers was compelled 
to speak solely for purposes of voice identification 
violated the Fifth Amendment as incorporated in the 
Fourteenth. The latter question had been reserved by 
the Court in United States v. Wade, 388 U.S. 218 at 
223 (1967).”

While Biggers’ application for certiorari was phrased so 
as to emphasize the voice identification question, the State 
of Tennessee’s statement of the issues presented in its



— A-18 —

“ Brief In Opposition to the Petition for Writ of Cer­
tiorari”  definitely indicates a broader due process factual 
review.2 Furthermore, the briefs accompanying the ap­
plication for the writ of certiorari and the actual briefs 
filed once the writ was granted unquestionably show that 
all factors surrounding the identification procedure were 
raised for review in the broadest due process challenge 
possible. I recognize and regret that quoting from these 
documents will substantially lengthen this dissenting 
opinion, but I feel that it is necessary to demonstrate 
conclusively that the Supreme Court had before it all 
aspects of the identification procedure in hearing the 
original appeal in this case, that there has been plenary 
review of that issue, and that no new issues of fact or 
law regarding this question were raised by petitioner in 
his habeas corpus request.3

In the appeal to the Supreme Court the grounds for 
granting certiorari were presented through Biggers’ “ Pe­
tition and Brief for Writ of Certiorari” . In that docu­
ment at pages 7-8, under subtitle “ Reasons for Granting 
the W rit” , it is argued:

2 Question II in the State of Tennessee’s brief under the sub­
title “ Questions Presented” was “ Whether or not the Sixth Amend­
ment to the United States Constitution relating to assistance of 
counsel requires counsel to be present during the identification pro­
cedure, (1) when the investigation is but a general inquiry into 
an unsolved crime, and (2 ) when held prior to commencement of 
criminal proceedings” [Emphasis in original]. And, in the State 
of Tennessee’s “ Supplemental Brief in Opposition to the Petition 
for the Writ of Certiorari” the question specifically addressed was 
“ whether or not petitioner was denied due process o f law by the 
identification procedure followed at the police headquarters. . . .”

3 An additional reason for quoting at some length from these 
documents is that they are not readily available. In quoting from 
these materials, I have omitted footnotes and references to tran­
script pages, however, the complete record of all documents 
filed in this case in the Supreme Court may be found in 
Volume 51. Transcripts of Records and File Copies of Briefs, 
Nos. 232-237, Supreme Court of the United States, October Term 
1967.



— A-19

Petitioner Was Denied His Rights Under the Due 
Process Clause of the Fourteenth Amendment and the 
Fifth and Sixth Amendments to the United States 
Constitution Under Circumstances Similar to Those 
in Conflicting Court of Appeals Cases Granted Cer­
tiorari and Presently Pending Before This Court.

The facts in this case are starkly simple, but they 
raise a critical question of the fairness and impar­
tiality of police identification practices. They reveal 
that Archie Biggers was denied his right to a fair 
trial by police practices which denied him elementary 
Fourteenth Amendment protections.

The only evidence against petitioner at trial was 
the identification made by the prosecutrix, Mrs. Mar­
garet Beamer, that Archie Biggers was the man who 
had raped her. Biggers, a 16 year old Negro was 
arrested early on the morning of August 17, 1965 and 
charged with the attempted rape of another woman 
(Tr. 70). Later the same day, the police brought 
Mrs. Beamer, who had been raped on the night of 
January 22, 1965, almost eight months earlier (Tr. 4-7, 
20, 85-88) to “ look at a suspect”  (Tr. 27-28, 57, 106, 
109-110). Unable to describe or identify her assailant 
(Tr. 13) her case had remained without clues. Asked 
to identify Biggers if she could, the first view she had 
of the petitioner was of him alone in the custody and 
presence of five police officers (Tr. 112). He had no 
lawyer. The police then required him to speak the 
exact words of the rapist spoken during the offense 
(Tr. 6, 7, 17, 47, 93, 108, 112-113, 156), on the basis 
of which she identified petitioner as the rapist. These 
were the circumstances surrounding the identification 
by the prosecutrix.

The facts in this case raise the issue present in 
conflicting Second and Fifth Circuit cases which this



—  A -20 —

Court has granted certiorari to determine. United 
States ex rel. Stovall v. Denno, 355 F.2d 731 (2nd 
Cir. 1966), cert, granted 34 U.S.L. Week 3429 (June 
20, 1966); Wade v. United States, 358 F.2d 557 (5th 
Cir. 1966), cert, granted 35 U.S.L. Week 3124 (Oct. 
10, 1966). The Second Circuit, sitting en banc, held 
that the defendant’s Fifth, Sixth and Fourteenth 
Amendment rights were not violated when he was 
taken to the victim’s hospital room for identification 
without the benefit of a line-up or counsel, even though 
arraignment had been postponed to allow him to ob­
tain counsel. The Fifth Circuit, in Wade v. United 
States, supra, specifically adopted the view of the dis­
senting judges in United States ex rel. Stovall v. 
Denno, supra. It excluded testimony of the line-up 
on the ground that the line-up had violated the de­
fendant’s constitutional rights because two witnesses 
had seen him in the custody of the police shortly 
before the line-up, and defendant’s counsel had not 
been notified and was not present at the line-up. 
Archie Biggers, like Wade, was denied elemental pro­
tections against suggestion and the right to counsel 
during the test to identify his voice. Indeed, the cir­
cumstances of Biggers’ identification were less con­
ducive to impartiality than those in United States v. 
Wade, supra, and the arguable necessity for speed in 
identification and difficulty in arranging a line-up in­
volved in United States ex rel. Denno, supra, is not 
present in this case.

In subsection II of that subtitle (“ The Facts in This 
Case Show That Petitioner Was Denied Due Process of 
Law and the Protection of the Fifth and Sixth Amend­
ments to the Constitution of the United States” ) it is 
argued:

To negate inference or suggestion from an identifi­
cation proceeding, a line-up is generally regarded as



—  A-21 —

essential to provide a mode of comparison by police 
authorities. See Criminal Investigation and Interro­
gation, Gerber and Scbroeder ed., §22.20 (1962); 
Criminal Investigation, Jackson ed. (5th ed. 1962) at 
pp. 41-42. The failure to provide Archie Biggers with 
the protection of a line-up in a rape case, considering 
his youth, the eight month period since the rape and 
other circumstances is inexcusable. There was no 
reason for the lack of a line-up, and every reason to 
provide one. As Archie Biggers was being held in 
police custody for an unrelated charge, this is not a 
case of street identification immediately after arrest, 
nor even a case where it was physically impossible to 
hold a line-up. Nor was there need to identify Archie 
Biggers quickly. Mrs. Beamer had been raped eight 
months earlier and the time necessary to arrange a 
line-up certainly would not have affected her identifi­
cation. Indeed, the time lapse, well known to the 
police, should have been sufficient to mandate a line-up 
to police conscientiously seeking an impartial, dispas­
sionate identification.

Again in subsection II at pages 12-13 it is argued:

Archie Biggers was also denied his right to assist­
ance of counsel at the time of his identification, clearly 
a “ critical stage”  in his case. Escobedo v. Illinois, 
378 U.S. 478, 486 (1964). The police were without a 
clue to the identity of the man who had raped Mrs. 
Beamer. If she could identify a man it would cer­
tainly form at least the basis for prosecution. If 
counsel had been present he could have done several 
things to insure an impartial test. He could have 
requested a line-up, or alternatively some other plan 
to assure conditions designed to avoid suggestion. If 
present, counsel could have questioned the prosecutrix 
during identification before she had placed herself in



the position of making a positive identification. It is 
quite possible that his mere presence would have 
served to counterbalance that of the police, and the 
inherent suggestiveness of police station identifica­
tion of one in custody. Had counsel been present he 
might have prevented the police from requiring the 
petitioner to speak the words of the rapist, words 
which carried an inherent suggestion of guilt. Or 
counsel might have advised his client to remain silent.

The circumstances of this case, taken separately and 
in combination, establish violations of the due process 
clause of the Fourteenth Amendment, and through it, 
violations of the Fifth and Sixth Amendments.

In the State of Tennessee’s “ Brief in Opposition to the 
Petition for Writ of Certiorari”  it is argued at page 8:

Petitioner urges this Court to grant certiorari in 
this case because he contends that the identical ques­
tion raised here is presented in the two (2) cases 
mentioned in which this Court has previously granted 
certiorari. Respondent respectfully insists that the 
questions are not the same.

It is clear from an analysis of United States ex rel. 
Stovall v. Denno, supra, and Wade v. United States,
supra, that the question in those cases is not whether 
it is a violation of due process for a victim to identify 
an accused during an identification procedure at police 
headquarters, but whether it is incumbent upon the 
State to provide counsel to the accused at the identi­
fication procedure following the commencement of 
criminal proceedings against him. The case at bar is 
unlike those cases inasmuch as at the time of the 
identification of the accused by Mrs. Beamer, no crimi­
nal proceedings had commenced insofar as this matter 
is concerned. The plain truth is that the petitioner 
had been arrested on a separate charge and as a mat­

—  A-22 —



—  A-23 —

ter of general inquiry Mrs. Beamer was called to see 
whether or not she could identify him.

Once certiorari was granted the briefs decidedly show 
that the Supreme Court had before it for review each and 
every aspect of the identification procedure so as to assess 
the “ totality of circumstances.”  Beside the point that the 
“ totality”  test raises a factually all encompassing due 
process issue, in Biggers’ Supreme Court brief under the 
subtitle “ Argument”  the broadest due process argument 
is made. Therein, at pages 8-18, it is argued:

The Circumstances of Petitioner’s Pre-Trial Identi­
fication and Its Use as Evidence at Trial Deny Him 
Due Process of Law as Guaranteed by the Fourteenth 
Amendment.

The decisions of this Court in United States v. 
Wade, 388 U.S. 218 (1967) and Gilbert v. California, 
388 U.S. 263 (1967) holding pre-trial identification in 
absence of counsel violates the Sixth Amendment, 
would require reversal in this case but for the decision 
in Stovall v. Denno, 388 U.S. 293 (1967), barring their 
retroactive effect. Like Wade and Gilbert, Biggers 
was denied the right to the assistance of his retained 
counsel by the police holding a pre-trial identification 
proceeding in his attorney’s absence. The Court re­
manded Wade to determine whether a subsequent in­
court identification should be excluded as the tainted 
product of the line-up identification, while Gilbert ex­
cluded in-court testimony of the pre-trial identification 
per se. As petitioner was convicted on the testimony 
of the prosecutrix’s pre-trial identification at a showup 
(she did not attempt to identify him at trial) where 
petitioner was unrepresented by counsel, Biggers 
would be entitled under Gilbert to exclusion of the 
identification.



—  A-24 —

A. The Failure of the Police to Hold a Lineup Vio­
lates Due Process.

The question, therefore, is that left open in Stovall 
v. Denno, 388 U.S. 293, 301, 302 (1967), whether the 
pre-trial confrontation between petitioner and the 
victim “ was so unnecessarily suggestive and con­
ducive to irreparable mistaken identification that 
[petitioner] was denied due process of law. This is 
a recognized ground of attack upon a conviction inde­
pendent of any right to counsel claim. Palmer v. 
Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966).”  The 
accused in Stovall was identified without a lineup, a 
procedure of acknowledged suggestiveness: “ The 
practice of showing suspects singly to persons for the 
purpose of identification, and not as part of a line-up, 
has been widely condemned”  (388 U.S. at p. 302). 
Nevertheless, due process was not violated in Stovall 
solely because of exigent circumstances. The victim 
was in danger of death, and if an identification was to 
be made at all “ an immediate hospital confrontation 
was imperative”  (Ibid.).

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

United States v. Wade, 388 U.S. 218 (1967) and 
Gilbert v. California, 388 U.S. 263 (1967) found need



—  A-25 —

of impartial and selective identification procedures, 
and thereby the need for counsel, even when a lineup 
is held in part because the reliability of any identifi­
cation of a stranger is severely limited by normal 
human fallibilities of perception and memory. A 
showup, on the other hand, results in the maximiza­
tion of suggestion that the suspect is the guilty party 
and suggestion is the “  ‘ one factor which, more than 
anything else, devastates memory and plays havoc 
with our best intended recollections * * V  ”  Sugges­
tion is in large part the product of restricted selec­
tivity offered the witness in the identification process. 
Instead of being forced to choose between several 
persons with different heights, weights, profiles and 
voices, Mrs. Beamer was confronted with a single 
individual whose suspected guilt the police communi­
cated by presenting him alone and in custody. The 
witness is free to accept or reject this police judg­
ment, but not to choose. With good reason, therefore, 
the showup is labelled “ the most grossly suggestive 
identification procedure now or ever used by the 
police.”  Wall, Eyewitness Identification in Criminal 
Cases 28. See also, Stovall v. Denno, 388 U.S. 293, 
302 n. 5 (1967).

In identifying petitioner, Mrs. Beamer relied par­
ticularly on her recollection of a voice she had not 
heard in seven months, but selectivity is decreased 
even more when identification is by voice. An identi­
fication by physical appearance may rest upon various 
characteristics, one or a combination of which may be 
particularly striking, such as the shape of a nose or 
mouth, skin complexion, scars, or height and weight. 
Voice identification rests merely upon the tone and 
timbre of a voice, as well as an individual’s speech 
peculiarities. When few words are spoken and no 
special speech peculiarities are present, as in this



—  A-26 —

case, only tone and timbre are left to provide identifi­
cation. Selectivity is at the barest minimum; the 
probability of error is maximized. Biggers, moreover, 
spoke softly during the identification (R. 17). It is 
difficult to believe the intruder spoke this way during 
the assault and rape. The unreliability of voice identi­
fications as compared to physical identifications, with 
the resultant increased necessity for a lineup, was 
recognized by the Fourth Circuit in Palmer v. Peyton, 
359 F.2d 199, 201-202 (1966):

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

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

The holding in Stovall that absent unusual circum­
stances a show-up violates the due process rights of



—  A-27 —

an accused is also soundly rooted in the policy adopted 
in United States v. Wade, 388 U.S. 218 (1967) and 
Gilbert v. California, 388 U.S. 263 (1967). Those cases 
envision that “ presence of counsel itself can often 
avert prejudice and assure a meaningful confronta­
tion at trial.”  (388 U.S. at 236). Suggestion is to be 
prevented by an attorney calling the attention of the 
police to identification procedures which produce it 
and by proposing safeguards. For the attorney to 
play a practically meaningful role as insurer of the 
integrity of the pre-trial identification proceedings, 
practices such as the showup which result in undue 
suggestion must be condemned or counsel is reduced 
to the role of passive observer, unable to prevent un­
reliability and reduced to attempting to expose it 
after the fact at trial. I f counsel is unable to assert 
that a procedure as destructive of reliability as the 
show-up is unconstitutionally suggestive, it is diffi­
cult to see how he will be able to assist law enforce­
ment as Wade presupposes “ by preventing the in­
filtration of taint in the prosecution’s identification 
evidence”  (388 U.S. at p. 238).

B. The Circumstance of the Identification and Its 
Use at Trial Violate Due Process.

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

First. Prior to the police call “ to look at a sus­
pect”  Mrs. Beamer was particularly open and sus­



—  A-28 —

ceptible to suggestive influence. The crime had oc­
curred seven months earlier and had lasted at the 
most 30 minutes; inevitably the sharpness of her 
memory had faded. Mrs. Beamer, by her own admis­
sion at trial, was terrified by fear of violence to her­
self and children. When asked (R. 14):

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

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

shiny. ’ ’

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

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

Third. At the station house Mrs. Beamer first saw 
Archie Biggers in the custody of five police officers, 
all of whom remained present during the identifica­
tion. The sheer number of officers, implying the im­
portance of the petitioner as a “ suspect” , may well 
have allayed any thought by the witness that this



—  A-29 —

might not be “ the man.”  On the other hand, the num­
ber of officers may have increased her fear of con­
tradicting the police as to the identity of a man re­
garded by them for reasons unknown to her as a 
* ‘ suspect. ’ ’

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

Wall has evaluated the latter two suggestive tech­
niques used in this case. He states that “ As bad as a 
show-up is, there are a number of ways it can be made 
worse. * * * One method is to point out the suspect to 
the witness even before the showup, indicating his 
status as suspect. * * * If this practice is not deemed 
suggestive enough, then the suspect, when shown 
alone, can be required to act or speak in the manner 
in which the perpetrator of the crime is supposed to 
have acted or spoken, a method adopted for example, 
in the Sacco-Vanzetti case.”  Eyewitness Identification 
in Criminal Cases 30.

Fifth. Archie Biggers was unprepared and un­
equipped to protect himself against an identification 
made unfair by suggestions to the witness. He was 
16 years old, had a ninth grade education, and ap­



—  A-30 —

parently no previous police record. His immaturity, 
relative lack of education, and unfamiliarity with po­
lice procedures combined to make it difficult for him 
to intelligently safeguard himself against suggestive 
influence at the identification. Cf. Haley v. Ohio, 332 
U.S. 596 (1948); Gallegas v. Colorado, 370 U.S. 52 
(1962); In Re Gault, 387 U.S. 1 (1967). This vul­
nerability to police procedures suggesting his guilt 
was further increased by the failure to notify Big- 
gers’ family of the identification despite the fact that 
his mother was available, the police having notified 
her earlier on August 17th that her son was being 
held on an unrelated charge. While the nonretroac­
tivity of the Sixth Amendment holding of Wade, 
supra and Gilbert, supra, precludes reversal solely 
on the basis of lack of counsel, the consequences of 
an identification proceeding held without an attorney 
present must be noted as they affect an accused’s 
right to a fair trial. Cf. Davis v. North Carolina, 
384 U.S. 737, 740, 741 (1966). Placed in an unfamil­
iar situation and seized by the natural fear of one 
whose liberty depends upon another, an accused is 
unlikely either to reconstruct completely or he capa­
ble of testifying to all the suggestive influences which 
would reflect on the witness’ impartiality and credi­
bility. An accused as young and inexperienced as 
Archie Biggers is particularly affected by these dis­
abilities. We can never know if additional suggestive 
influences may have further tainted the identification 
in this case, but we do know that the procedure em­
ployed maximized potential suggestion without the 
protective presence of counsel to protect the right to 
cross-examine, Pointer v. Texas, 380 U.S. 400, 404 
(1965).

Sixth. The pre-trial identification was exploited at 
trial by the State’s complete reliance on the tainted



—  A-31 —

identification. Although she came to within a foot 
of the assailant, Mrs. Beamer’s young daughter could 
not identify Biggers. Mrs. Beamer did not attempt 
an in-court identification. The pre-trial identification 
was offered by the state and was presented em­
phatically to the jury as the difference between guilt 
and innocence. No other evidence of guilt was pre­
sented although testimony elicited by the prosecution 
from four police officers as to what transpired at the 
identification made it appear to the jury that Mrs. 
Beamer’s testimony was corroborated, see United 
States v. Wade, 388 U.S. at p. 247 (opinion of Mr. 
Justice Black). According to the prosecuting attor­
ney, the excitement of the crime was proof of accuracy 
of the subsequent identification. Professor Borchard’s 
studies show, however, “ that the emotional balance 
of the victim or eyewitness is so disturbed by his 
extraordinary experience that his powers of percep­
tion became distorted and his identification is fre­
quently most untrustworthy”  Convicting the Innocent, 
X III (1961). This is especially true in a rape prosecu­
tion where, as the Court has recognized, identification 
presents “ a particularly hazard that a victim’s under­
standable outrage may excite vengeful or spiteful mo­
tives”  United States v. Wade, 388 U.S. at p. 230.

Seventh. Without exception, the state could have 
employed procedures to safeguard the fairness of the 
identification and trial but did not do so. There was 
no practical impediment to a lineup. The witness 
need not have been told Biggers was a suspect. He 
did not have to repeat the precise language used by 
the criminal. Parents and counsel were available and 
could have been present. The number of officers at 
the identification was surely excessive and their testi­
mony at trial served only to prop up a thin case. No 
in-court identification was offered. It was unneces­



—  A-32 —

sary for the state to initiate reference to prejudicial 
newspaper accounts of Biggers’ arrest and identifi­
cation or to permit the jury to learn that Biggers 
spoke the words of the criminal. Finally, it may have 
been good advocacy for the prosecuting attorney to 
tell the jury that “ violence and terror . . . fixes 
these matters indelibly in a person’s mind’ ’ (R. 177) 
but it hardly speaks of dedication to “ making the 
criminal trial a procedure for the ascertainment of 
the true facts surrounding the commission of the 
crime’ ’ United States v. Wade, 388 U.S. at p. 256 
(opinion of Mr. Justice White).

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

In response to this argument, the State of Tennessee 
countered, in its main brief in opposition to the merits of 
the appeal, arguing:

Although the petitioner was not deprived of his 
Fifth Amendment privilege against self incrimination 
nor was he deprived of his Sixth Amendment right to 
counsel, this Court is asked to review the circum­
stances of the identification to determine whether or 
not they were so suggestive as to deprive the peti­
tioner of his right to a fair trial as guaranteed by the 
Fourteenth Amendment to the Constitution of the 
United States.



—  A-33 —

This Court in the case of Stovall v. Denno, supra, 
held that although the accused was not denied his 
Sixth Amendment rights because of the prospective 
application of Wade and Gilbert, the matter could be 
reviewed in order to determine whether a fair trial 
was given him. This review for the purpose of deter­
mining whether or not the identification confrontation 
was fair, was made upon the authority of Palmer v. 
Peyton, 359 F. 2d 199 (4th d r . 1966). This Court 
stated that a “ claimed violation of due process of 
law in the conduct of a confrontation depends on the 
totality of the circumstances surrounding it” . It is 
necessary that this Court review the circumstances 
surrounding the identification of the petitioner in the 
case at bar. It is significant that the Court in the 
case of Palmer v. Peyton reviewed the circumstances 
and determined that the accused therein was deprived 
of a fair trial as guaranteed by the Fourteenth 
Amendment although that particular question had 
never been raised below. It is also significant that the 
Court in the Palmer case cited no authority upon 
which it reviewed the circumstances surrounding the 
identification.

The petitioner Biggers was arrested during the 
night of August 16, 1967, taken to juvenile court and 
released by the juvenile court to the metropolitan 
police of Nashville. Mrs. Beamer had been raped 
months earlier and had from time to time visited the 
police department in an attempt to identify suspects. 
She was called to identify if possible the petitioner 
while he was being held on a separate and unrelated 
charge. He had been advised at the juvenile court 
of his constitutional rights as had his mother. He 
was displayed to Mrs. Beamer at police headquarters 
and asked to speak certain words. She had reviewed 
police files and viewed suspects during the months



—  A-34

since her rape. The identification which she made of 
Biggers was not the product of suggestion but was 
the result of many months of investigation. Mrs. 
Beamer identified the petitioner in Court also. There 
is no indication that her identification in the court­
room was the result of police suggestion nor is there 
any indication that her identification in the courtroom 
was the result of or influenced by her identification 
before trial.

In the Stovall case the accused was handcuffed to 
one of five police officers who, along with members of 
the District Attorney’s Office, brought him to a hospi­
tal room in which the victim of the assault was con­
fined. He was identified by the victim from her hos­
pital bed after having been required to speak “ words 
and voice identification” . This Court held that the 
circumstances were not such as to indicate that the 
petitioner Stovall was deprived of his right to a fair 
trial as guaranteed by the Fourteenth Amendment. 
The facts in the Stovall case are very similar to the 
facts in the case at bar.

This Court should affirm the conviction of the peti­
tioner for rape. There is nothing in the record to 
indicate that the petitioner has been deprived of his 
right to due process.

Following the equally divided decision by the Supreme 
Court, Biggers petitioned for rehearing arguing:

Subsequent to the Court’s ruling in petitioner’s 
case, certiorari has been granted to consider, in the 
case of another state prisoner, those circumstances 
which result in an identification procedure violating 
the Due Process Clause of the Fourteenth Amend­
ment, Foster v. California, No. 638 Misc., 36 U. S. L. 
Week 3374 (3/25/68). Foster involves a lineup which 
is alleged to have been unconstitutionally conducted.



—  A-35 —

As petitioner was not accorded the elementary protec­
tion of a lineup— and the record is barren of evidence 
justifying the failure to hold one—reversal in Foster 
would, a fortiori, affect, if not determine, final reso­
lution of petitioner’s constitutional claim. An inter­
vening circumstance such as “ the fact that the same 
or a related issue has come before the court in other 
cases still pending”  is a common ground for grant of 
rehearing. Stern and Gressman, Supreme Court 
Practice, 3rd Ed. 389; see Pickett v. Union Terminal 
Co., 313 U.S. 591 (1941); 314 U. S. 704 (1941); 315 
U. S. 386, 389, 394 (1942). It is plainly appropriate 
and just that the results in these two cases conform. 
Unless it is beyond doubt that principles announced in 
Foster will not bear upon petitioner’s claim, this 
petition should be granted.

The petition was denied.

On the basis of this appellate record, it seems impossible 
to simply assume that the Supreme Court failed to assess 
each and every aspect of the identification procedure and 
considered only the voice identification issue as conjec­
tured by the majority opinion. I view Mr. Justice Doug­
las’ dissenting opinion in which the due process issue 
issue is discussed as a significant indication of the all in­
clusive factual review given that issue. In short, I believe 
that the only conclusion which may be drawn from the 
appellate record in the Supreme Court is that all facts 
surrounding the pretrial identification were plenarily re­
viewed by the Court, and the proceedings in the District 
Court, pursuant to the request for habeas corpus, not only 
could not raise any new or unexplored factual or legal 
matters with respect to this issue, but were a mimicry of 
the Supreme Court review.

If, as the appellate record indicates, there was a com­
plete review by the Supreme Court of the identification



—  A-36

procedure applying the appropriate legal test, the next 
question dividing this Court is what effect the evenly 
divided decision had on the merits of that issue. I be­
lieve that logically, historically and legally a decision 
reached by an evenly divided court is on the merits. The 
majority correctly states that an equal division of an ap­
pellate court does not settle any principle of law. Logic, 
of course, compels this result since to establish a prin­
ciple of law having precedent value a majority decision is 
required. Both Etting v. United States Bank, 24 U.S. (11 
Wheat.) 59 (1826), and Durant v. Essex Company, 74 
U.S. (7 Wall.) 107 (1868), so hold. However, I disagree 
with the majority’s statement that an equal division of 
an appellate court does not settle an issue of fact. To the 
contrary, the expression “ finally disposed o f”  in Durant 
v. Essex Company, supra, I believe means a conclusive 
decision on the facts. In addition, in Hertz v. Woodman, 
218 U.S. 205, 213-14 (1909), it is stated:

“ Under the precedents of this court, and as seems 
justified by reason as well as by authority, an af­
firmance by an equally divided court is as between 
the parties a conclusive determination and adjudi­
cation of the matter adjudged, . . . ”

And, in United States v. Pink, 315 U.S. 203, 216 (1941), 
it is stated that while an affirmance of a judgment by an 
equally divided court is not an authoritative precedent it 
is “ conclusive and binding upon the parties as respects 
that controversy” . See also, United States v. Reeside, 19 
L.Ed. 391 (1868).

While this rule is well established in civil cases, be­
cause of the novelty of the problem, there are only a few 
criminal cases which have explored the effect of a judg­
ment arrived at by an equally divided court. However, 
several state courts having been presented with the prob­
lem in criminal cases have concluded that an affirmance



—  A-37 —

by an equally divided court is, like in a civil case, on the 
merits of the issues presented and ends the dispute over 
those issues. See Chahoon v. Commonwealth, 62 Va. 822, 
825 (1871), construing a statute; and see State ex rel. 
Hampton v. McClung, 47 Fla. 224, 37 So. 51 (1904); Ex 
parte White, 131 Fla. 83, 178 So. 876 (1938); Dean v. 
State, 173 Miss. 255, 309-310, 162 So. 155 (1935), inter­
preting the common law.

The only federal criminal case besides Biggers and 
Carter, supra, which research has uncovered involving a 
judgment arrived at by an equally divided court, is 
United States v. Worrall, 2 U.S. (2 Dali.) 384 (1798). 
There the defendant was found guilty in the United States 
Circuit Court of attempting to bribe a United States Com­
missioner of Revenue. Mr. Justices Chase and Peters 
were unable to agree upon the question of whether the 
federal courts had common law jurisdiction in criminal 
cases, and there being no right of criminal appeal at that 
early date to the Supreme Court, of which the Justices 
were also members, the judgment was affirmed because 
of the equally divided court and punishment was imposed. 
Admittedly, the affirmance resulting from this divided 
court was a technical affirmance, but nevertheless it was 
a final judgment upon which a prison sentence and fine 
were imposed. See generally, 4 C.J. § 1121; 24B C.J.S. 
§ 1945. These precedents persuade me that an affirmance 
by an equally divided court in a criminal case, following 
review of the issues presented, is on the merits of the 
issues even though the affirmance must follow because the 
judges are equally divided. And, as the appellate record 
clearly shows, the issue of the constitutionality of Big­
gers’ pretrial identification has been completely reviewed 
on the totality of facts by the Supreme Court. Accord­
ingly, I would hold that while petitioner is not barred 
from raising new issues or issues not fully litigated in 
his habeas corpus petition, he is, however, collaterally es­



—  A-38 —

topped from relitigating the merits of the identification 
issue since that issue has been plenarily litigated and 
resolved on the merits against him. Thus, I would re­
verse the judgment and remand the case to the District 
Court for consideration of the other constitutional issues 
raised by petitioner’s petition for a writ of habeas corpus.



—  A-39 —

APPENDIX B

In the District Court of the United States 
for the Middle District of Tennessee 

Nashville Division

Archie Nathaniel Biggers,
Petitioner,

v.

William S. Neil, Warden Tennessee | 
State Penitentiary, Nashville, 
Tennessee,

Respondent.

Civil No. 5120

ORDER

(Filed May 4, 1970)

Respondent in the instant case has filed with the Court 
a Motion to Reconsider. In so doing, respondent alleges 
that the Court erred in accepting jurisdiction over the 
instant habeas corpus matter and in deciding on the 
merits of petitioner’s claims. Respondent’s allegation of 
error rests on the proposition that the affirmation of peti­
tioner’s conviction by reason of the equal division of 
opinion of the United States Supreme Court when it 
heard petitioner’s case in Biggers v. Tennessee, 390 U.S. 
404 (1968), was an adjudication that “ is as conclusive 
and binding upon the parties as if rendered upon the 
concurrence of all participating judges upon every ques­
tion involved in the case.”  Respondent further contends 
that since the issues raised in this case have been thus 
“ adjudicated”  by the Supreme Court, the doctrine of res 
judicata should apply and the instant petition should 
have been dismissed by the Court.



—  A-40 —

The issue raised by respondent’s present motion may 
be stated thusly: In a habeas corpus proceeding, does an 
affirmation by reason of an equal division of opinion 
among the Justices of the Supreme Court amount to an 
adjudication between the parties which, even though no 
decision was rendered as to the merits of petitioner’s 
claim, must be considered final in that the doctrine of 
res judicata would bar petitioner from raising the same 
constitutional claims in a subsequent habeas corpus peti­
tion?

After a thorough consideration of the case law relevant 
to the issue, the Court remains of the opinion expressed 
in its Order of May 12, 1969, that the merits of peti­
tioner’s constitutional claims were left undecided by the 
equally divided Supreme Court and that the doctrine of 
res judicata does not operate in such a manner as to bar 
petitioner from raising those constitutional claims again 
as presented in his habeas corpus petition. It is generally 
true that when the Supreme Court is equally divided as 
to the outcome of a case, the judgment is automatically 
affirmed without opinion. Etting v. Bank of the United 
States, 24 U.S. 59 (1826). Furthermore, as respondent 
points out, there is a general rule to the effect that “ an 
affirmance by an equally divided court is, as between the 
parties, a conclusive determination and adjudication of 
the matter adjudged. . . . ”  Hertz v. Woodman, 218 U.S. 
205 (1910); and see United States v. Pink, 315 U.S. 203 
(1942); Durant v. Essex Co., 74 U.S. 107 (1868); and 
Kaku Nagana v. Brownwell, 212 F.2d 262 (7th Cir. 1954). 
However, the Court is of the view that the general rule 
espoused in the above cited cases cannot be taken to stand 
for the proposition that a technical affirmation which 
results from the fortuitous circumstance of an equally 
divided court and which makes no pronouncement, either 
pro or con, on the merits of the constitutional claims of 
a habeas corpus petitioner, must be protected by the



— A-41 —

doctrine of res judicata. The cases cited by respondent 
in support of his argument are unconvincing since they 
deal wholly with litigation concerning property rights1 
rather than the right of a criminal defendant to due 
process of law where there is a possibility that his liberty 
or even his life may be forfeit. As the leading cases on 
the effect of affirmation due to an evenly divided court 
make clear, the principles of law which are argued in 
such a case are not decided but, rather, are left unsettled. 
In such a circumstance, the Court affirms out of necessity 
since, in its evenly divided state, it cannot overturn the 
lower court ruling. Such an affirmation is a technicality 
only, growing out of the policy of judicial administration 
that there must at some point be an end to litigation. 
See, Etting v. Bank of the United States, 24 U.S 59 
(1826).

It is inconceivable that a technical rule such as this, 
born to serve the needs of judicial administration, could 
be employed to deny a criminal defendant the right to 
obtain a full judicial determination of his constitutional 
claims in the federal courts. Certainly, it would amount 
to a travesty on justice if such a result were permitted. 
In the circumstances surrounding this case that travesty 
would be compounded by the fact that the even split of

1 In cases involving contract rights, various property rights, 
tax liability questions, etc., there are overriding economic and 
administrative interests in seeing that finality is achieved in 
litigation so that “ business can proceed as normal.”  The cases 
cited by respondent make this very clear. In Hertz v. W ood­
man, 218 U.S. 205 (1910), the Court was concerned with de­
ciding who was entitled to the possession and enjoyment of a 
distributive share of an estate for tax purposes; in Durrant v. 
Essex Co., 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 o f surplus funds 
o f 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.



—  A-42

opinion occurred because of the necessity of Mr. Justice 
Marshall having to recuse himself apparently due to past 
professional association with petitioner’s attorneys. The 
liberty of petitioner and others like him should not be 
left to the mercy of mere fortuity.

Fortunately, it has been recognized from early common 
law days to the present that such technicalities cannot 
be used to thwart the right of the criminal defendant 
to have merits of his constitutional claim fully adjudi­
cated. As the United States Supreme Court has recently 
stated: “ Conventional notions of finality of litigation 
have no place where life or liberty is at stake and in­
fringement of constitutional rights is alleged.”  Sanders 
v. United States, 373 U.S. 1 at 8 (1962).2 Indeed, it has 
long been recognized as a “ familiar principle that res 
judicata is inapplicable in habeas proceedings.”  Fay v. 
Noia, 372 U.S. 391 at 423 (1962). I f government is always 
to be accountable to the judiciary for a man’s imprison­
ment, then access to the courts by way of habeas corpus 
must not be thus impeded. “ The inapplicability of res 
judicata to habeas, then, is inherent in the very role and 
function of the writ.”  Sanders v. United States, supra, 
at 8; and see e.g. Fay v. Noia, supra at 402; King v. Sud- 
dis, 1 East 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 respondent’s proposed 
interpretation of 28 U.S.C.A., § 2244(c), dealing with the 
finality of determinations by federal courts in habeas 
corpus proceedings. As Sanders makes clear, § 2244(c) 
was “ not intended to change the law as judicially 
evolved.”  Furthermore, “ if construed to derogate from 
the traditional liberality of the writ of habeas corpus,

2 See Note 1 supra.



—  A-43 —

. . .  § 2244 might raise serious constitutional questions. ’ ,3 
Sanders v. United States, supra, at 11-12, and see, Fay 
v. Noia, supra, at 406.

It should be made clear that while res judicata is in­
applicable in habeas corpus proceedings, it is proper for 
a judge to deny subsequent applications for habeas corpus 
relief on the ground that the first denial had followed 
a full hearing on the merits. However, it should also be 
made clear that a judge is permitted to dismiss on such 
grounds and not required to order a dismissal by reason 
of any considerations of res judicata. See, Salinger v. 
Loisel, 265 U. S. 224 (1960); and, Sanders v. United 
States, supra.

The Sanders case is instructive as to the types of situ­
ations in which a judge may correctly elect to dismiss a 
habeas corpus petition on the ground that a previous 
hearing has disposed of the petitioner’s claims on their 
merits. Sanders states that:

“ Controlling weight may be given to denial of a 
prior application for federal habeas corpus or § 2255 
relief only if (1) the same ground presented in the 
subsequent application was determined adversely to 
the applicant on the prior application, (2) the prior 
determination was on the merits, and (3) the ends 
of justice would not be served by reaching the merits 
of the subsequent application.”  Sanders, supra at 15. 

and further that:
“ No matter how many prior applications for federal 
collateral relief a prisoner has made [controlling 
weight may not be given to denial of prior applica­
tions], if a different ground is presented by the new

3 See U. S. Const., Art. I, § 9, cl. 2 which provides:
“ The Privilege of the W rit of Habeas Corpus shall not he 
suspended, unless when in Cases o f Rebellion or Invasion 
the Public Safety may require it.”



A-44

application [or] if the same ground was earlier pre­
sented but not adjudicated on the merits” [Emphasis 
added]. Sanders, supra at 17.

Looking to the facts here presented in light of the 
Sanders rule and the foregoing reasoning, the Court con­
cludes that the prior hearing of petitioner’s appeal by 
the United States Supreme Court did not determine the 
merits of petitioner’s constitutional claim. Further, as 
the memorandum opinion issued by the Court on April 
17, 1970, makes clear, the ends of justice have been served 
by this Court in hearing petitioner’s case and reaching 
the merits of the constitutional claims presented. The 
fact that petitioner’s conviction was technically affirmed 
by reason of the United States Supreme Court’s even 
division of opinion is of no consquence here since the 
merits of the claim were not adjudicated. Even if they 
had been adjudicated, Sanders shows that those claims 
would not have been automatically barred from considera­
tion by this Court in a habeas corpus proceeding.

It occurs to the Court that there is yet another logical 
reason to support its decision to consider petitioner’s 
claim. The United States Supreme Court hearing in the 
Biggers case followed the acceptance by the Court of a 
writ of certiorari to review the affirmation of petitioner’s 
conviction by the Tennessee Supreme Court. The fortu­
itous circumstance of an equally divided United States 
Supreme Court simply had the effect of leaving undis­
turbed without opinion the ruling of the State Supreme 
Court. Therefore, the instant habeas corpus petition is, 
in effect, an initial federal habeas corpus petition alleging 
error in a state criminal conviction. This being the case, 
the Supreme Court of the United States has recently 
established the proposition that notions of finality, such 
as res judicata, forfeiture, or waiver, cannot be applied 
so as to preclude the initial consideration of federal con­
stitutional claims in a federal court. Fay v. Noia, supra 
at 428.



—  A-45 —

Finally, it should be readily apparent that the situation 
presented in the instant case is highly analagous to the 
situation where a criminal defendant, after appealing his 
case to the highest state court, has had his conviction 
affirmed by that court and has subsequently sought relief 
by way of habeas corpus petition in a federal district 
court. The analogy may be drawn as follows. Due to the 
equal division of opinion among the Justices, the United 
States Supreme Court did not decide this case on its 
merits. Therefore, the Tennessee State Supreme Court 
is the highest court to have expressed an opinion as to 
the merits of petitioner’s claim. That being the case, the 
Court is of the view that petitioner Biggers stands in 
essentially the same position as a criminal defendant who, 
having exhausted his state court remedies pursuant to 
28 U.S.C.A., § 2254, makes application for habeas corpus 
relief in federal district court. In such a situation, and 
in the instant situation, this Court has jurisdiction to 
fully adjudicate petitioner’s constitutional claims since 
it is an unchallengable principle of law that in habeas 
corpus cases the ruling of the highest court of a state 
on a constitutional claim never bars consideration of the 
same constitutional issue by a federal district court. 
Principles of res judicata simply have no application in 
this situation.

Accordingly, for the foregoing reasons the Court con­
cludes that the technical affirmation of petitioner Biggers’ 
state conviction by reason of the equally divided court 
does not foreclose this Court from disposing of the peti­
tioner’s constitutional claim on its merits. Therefore, 
respondent’s Motion to Rehear should be, and the same 
is hereby, dismissed.

MTM. E. MILLER
United States District Judge



A-46 —

APPENDIX C

ORDER

(Received April 17, 1970)

In this habeas corpus proceeding, the Court issued an 
order on July 29, 1969, to the effect that an evidentiary 
hearing should be held to determine whether or not there 
were unconstitutional irregularities in the identification 
process employed by the police in the instant case. This 
identification procedure was the primary basis for peti­
tioner’s indictment. In ordering such a hearing the Court 
was particularly concerned with the validity of the so- 
called “ show up”  identification method as it was used 
by police and, also, the reliability and validity of voice 
identification procedures utilized in the instant case. A 
hearing on these issues was held on October 30, 1969, and 
supplemental briefs were filed by both parties to the action 
several weeks later.

Before reaching the merits of petitioner’s claims, a 
brief statement of the facts is in order. Petitioner, 
Archie Nathanel Biggers, when 16 years of age was con­
victed on a charge of rape in a jury trial and sentenced to 
20 years in prison. On appeal to the Supreme Court of 
Tennessee, the conviction was affirmed. Biggers v. State, 
219 Tenn. 553, 411 S. W. 2d 696 (1967). The case was 
then accepted for review by the Supreme Court of the 
United States on a writ of certiorari. Biggers v. Tennes­
see, 390 U. S. 404 (1968). Again, the conviction was af­
firmed. However, the affirmation was the result of an 
equally divided court and, therefore, did not amount to 
an adjudication of the merits of petitioner’s claims so as 
to prevent him from bringing the instant habeas corpus 
action. [See the May 12, 1969 Order entered by this Court 
in the instant case; and also see, Etting v. Bank of the 
United States, 24 U. S. 59 (1826).]



—  A-47 —

The pertinent operative facts in light of the issues 
raised in the current proceeding are as follows. On the 
evening of January 22, 1965, Mrs. Margaret Beamer was 
attacked at knife-point by an intruder who broke into her 
home. Mrs. Beamer’s screams aroused her thirteen-year 
old daughter who rushed to the scene and also began to 
scream. At this point, the intruder is alleged to have 
said to Mrs. Beamer, “ You tell her to shut up, or I ’ll kill 
you both.”  This Mrs. Beamer did, whereupon she was 
taken from the house to a spot two blocks away and raped. 
The entire episode occurred in very dim light and the 
rape itself occurred in moonlight. As a result, Mrs. 
Beamer could give only a very general description of her 
assailant, describing him as being fat and flabby with 
smooth skin, bushy hair and a youthful voice.

Over a seven month period following the crime the 
police showed Mrs. Beamer various police photographs 
and had her attend several “ line-ups”  and “ show-ups.”  
However, the victim was unable to identify any of the 
persons shown to her as being her assailant. Finally, 
on August 17, 1965, petitioner was arrested as a suspect 
in the rape of another woman. While petitioner was 
being detained in connection with that case the police 
asked Mrs. Beamer to come to the police station to “ look 
at a suspect.”  The identification process employed at 
this point was called a show-up. In this type of identifica­
tion procedure, the suspect appears before the victim 
alone rather than in the company of others. The victim 
therefore does not have to attempt to choose one person 
from a group of persons presented to him, as in a line-up, 
but rather the victim knows that the person presented to 
him for identification is one whom the police suspect 
of having committed the crime. At the instant show-up 
Mrs. Beamer identified petitioner as being her assailant. 
As to what transpired at the show-up, there is some con­
flict between the Testimony given by Mrs. Beamer at the



—  A-48 —

trial and that given by her at the evidentiary hearing 
held in this court on October 30, 1969. In testimony given 
at the trial, Mrs. Beamer testified that on viewing the 
petitioner the “ first thing”  that made her think he might 
be her assailant was his voice. However, at the October 
hearing, Mrs. Beamer testified that she identified peti­
tioner positively prior to having him speak the words 
spoken by Mrs. Beamer’s attacker more than seven 
months earlier during the crime—“ You tell her to shut- 
up or I ’ll kill you both.”  There is also conflict between 
the testimony given by police officers at the trial and 
that given by them at the October hearing as to whether 
or not identification of petitioner was made before or 
after he was asked to speak these words.

At any rate, petitioner was identified at this show-up 
as being Mrs. Beamer’s attacker, and the subsequent in­
dictment and conviction of petitioner was based almost 
exclusively upon this station house identification.1

Turning now to a consideration of the legal conse­
quences attaching to the identification process described 
above, the basic issue to he dealt with may be defined as 
follows: was petitioner subjected to a type of identifica­
tion procedure, namely the show-up confrontation, which 
was so unnecessarily suggestive and conducive to ir­
reparably mistaken identification as to have the effect 
of denying due process of law to the petitioner? There 
are relatively few cases dealing with this issue and the 
validity of the show-up identification process in the light 
of due process considerations. However, the teachings of 
this small body of law point the way for decision of the 
issue now before the Court.

1 There is considerable doubt on reading the trial record as 
to whether or not Mrs. Beamer made a positive-in-court identifi­
cation of petitioner at the time o f the trial.



—  A-49 —

It is well settled that in the absence of exceptional 
circumstances any identification procedure, whether in 
the nature of a show-up or a line-up, employed without 
giving the suspect the right to have counsel present con­
stitutes a denial of due process. United States v. Wade, 
388 U. S. 218 (1967); and, Gilbert v. California, 388 U. S. 
263 (1967). Though petitioner in the instant case was 
not provided with the advice of counsel, the rule of Gil­
bert and Wade has no application here since that rule 
was not given retroactive effect, Stovall v. Denno, 388 
U. S. 293 (1967). The Stovall decision makes it clear, 
however, that aside from the right to counsel, a suspect 
also has the right not to be subjected to police iden­
tification procedures which are so unfair, given the 
“ totality of the surrounding circumstances,”  as to present 
a significant possibility of irreparably mistaken identifica­
tion. Where such faulty procedures are employed, they 
present a “ recognized ground for attack upon a con­
viction. . . .”  See, Stovall v. Denno, supra at 302; Sim­
mons v. United States, 390 U. S. 377 at 383 (1967); and 
Palmer v. Peyton, 359 F. 2d 199 (4th Cir., 1966). In 
light of these general principles, Mr. Justice Douglas suc­
cinctly stated the issue involved here in his dissenting 
opinion in the earlier consideration of petitioner’s case 
by the Supreme Court of the United States. He pointed 
out that whether or not the procedure by which Mrs. 
Beamer identified petitioner denied him due process of 
law “ must be evaluated in light of the totality of the 
surrounding circumstances”  with the view of deter­
mining if the procedure in petitioner’s case “ was so un­
duly prejudicial as fatally to taint his conviction.”  Big- 
gers v. Tennessee, 390 U. S. 404 at 406 (1967).

The show-up identification process is, as the expert wit­
ness for petitioner testified, a far less reliable method of 
identification than the line-up method. The fact that 
this is so has been given judicial recognition. In Wise



—  A-50 —

v. United States, 383 F. 2d 206 (D. C. Cir., 1967); and 
Wright v. United States, 404 F. 2d 1256 (D. C. Cir., 1968), 
it was stated that “ the presentation of only one suspect 
in the custody of the police raises problems of suggesti­
bility that brings us to the threshold of an issue of fair­
ness.”  See also, Biggers v. Tennessee, supra at 407-408; 
and, Stovall v. Denno, supra at 302. See also, Wall, Eye 
Witness Identification in Criminal Cases, 26-40, and Paul, 
“ Identification of Accused Persons,” 12 Austl. L. J. 42, 
44 (1938) (as cited by Mr. Justice Brennan in the major­
ity opinion in Stovall v. Denno, supra.)

The problem intrinsic in the show-up identification proc­
ess is perhaps best stated as follows:

whatever may be said of lineups, showing a suspect 
singly to a victim is pregnant with prejudice. The 
message is clear: the police suspect this man. That 
carries a powerfully suggestive thought. Even in a 
lineup the ability to identify the criminal is severely 
limited by normal human fallibilities of memory and 
perception. When the subject is shown singly, havoc 
is more likely to be played with the best-intended 
recollections. Biggers v. Tennessee, supra at 407 
(Justice Douglas’ dissent).

However, the use of the show-up process is not per se 
unconstitutional. Where special circumstances such as 
an urgent need for rapid identification are present, show- 
ups are allowable. For example, in Stovall, the Court 
found that the show-up was permissible and within the 
bounds of due process where the procedure was con­
ducted in the hospital room of the victim who was at 
the point of death following a stabbing attack. Clearly, 
in that case, there was no time to conduct a line-up and 
the urgency of the situation demanded that if any eye­
witness identification was to be obtained at all it had to 
be obtained by the show-up method. The “ totality of



A-51 —

surrounding circumstances”  was such that the show-up 
was found to be permissible.

Aside from the urgent sort of deathbed situation which 
occurred in the Stovall case, thorough analysis of case 
law in the area reveals certain other sets of circumstances 
in which a show-up has been held permissible. For ex­
ample, courts have upheld the constitutionality of the 
show-up where the witness had ‘ ‘ an unusually good and 
sustained opportunity to view the participants in the 
commission of the crime. The theory of the courts is 
that this particular circumstance makes it unlikely that a 
show-up would lead to misidentification. See, United 
States ex rel. Garcia v. Follette, 417 F. 2d 709 (2d Cir., 
1969); Macklin v. United States, 409 F. 2d 174 (D. C. Cir., 
1969); United States ex rel. Rutherford v. Deegan, 406 
F. 2d 217 (2d Cir., 1969); Cline v. United States, 395 F. 
2d 138 (8th Cir., 1968); and Hanks v. United States, 388 
F. 2d 171 (10th Cir., 1968). Show-ups have also been 
given court approval where the confrontation between 
the witness and the accused occurs “ so near the time 
when the alleged crime was committed”  that the chance 
of misidentification is minimal. The time period within 
which the show-up may be permissible ranges from a 
few hours to a few weeks. See, United States ex rel. Wil­
liams v. La Valle, 415 F. 2d 643 (2d Cir., 1969); Stewart 
v. United States, 418 F. 2d 1110 (D. C. Cir., 1969); United 
States ex rel. Anderson v. Mancusi, 413 F. 2d 1012 (2d 
Cir., 1969) (suspect identified within hours of crime); 
Clark v. United States, 408 F. 2d 1230 (D. C. Cir., 1968) 
(suspect identified within a few weeks and a “ very 
positive spontaneous identification”  by the witness); and, 
Bates v. United States, 405 F. 2d 1104 (D. C. Cir., 1968). 
Also, where the show-up was conducted following other 
independent identification by the witness (i. e., photo­
graphic identification), or a particularly good description 
of the participant in the criminal act, courts have tended



—  A-52 —

to approve the procedure. See, United States v. Thomp­
son, 417 F. 2d 197 (4th Cir., 1969).

While the show-up has been approved within the 
context of the four situations described above, the courts 
have zealously guarded the rights of the accused where 
the show-up procedure was conducted in a manner so 
suggestive and conducive to irreparably mistaken iden­
tification as to amount to a denial of due process. For 
example, a show-up was expressly disapproved where a 
witness was shown a lone suspect and asked, “ Is this the 
man?”  In this situation, the court stated that the words 
and actions of the police in contriving the show-up 
clearly indicated to the witness that the police thought 
this suspect had committed the crime, thereby contribut­
ing to a “ mutual reinforcement of opinion”  likely to 
lead to mistaken identification. See, Clark v. United 
States, 294 F. Supp. 44 (D. D. C., 1968). In another case, 
a Circuit Court of Appeals upheld the holding of a federal 
district judge that a cell block confrontation between a 
wdtness and a suspect was unnecessarily suggestive and 
therefore the identification obtained from the show-up 
could not be introduced at the trial. That show-up was 
objectionable on due process grounds because the suspect 
had been presented alone to the witness in a screened- 
off portion of the jail and the witness knew beforehand 
that the suspect was considered by police to he the 
culprit. See, Clemons v. United States, 408 F. 2d 1230 
(D. C. Cir., 1968); and see also, United States v. Gregg, 
414 F. 2d 943 (7th Cir., 1969).

In yet another case, a show-up identification was disal­
lowed because the identifying witness did not have the 
opportunity to obtain a good view of the participants in 
the crime. See, United States v. Gilmore, 398 F. 2d 679 
(7th Cir., 1968). The hesitancy of a witness to make a 
positive identification in a show-up has also been said to 
indicate the type of misidentification danger which would 
contravene constitutional requirements of due process.



—  A-53

These cases make it quite clear that while a show-up is 
constitutionally acceptable in certain situations, courts 
will look carefully at the factual situation surrounding 
the show-up to determine whether or not the procedure 
was conducted in such a manner as to violate due process 
requirements. Courts also have looked to the surrounding 
circumstances to determine whether or not a line-up 
should have been conducted rather than the show-up with 
its attendant dangers of misidentification. For example, 
where police custody is involved, it has been held that 
the need for a formal line-up may not be circumvented by 
keeping a suspect away from the stationhouse until an 
informal show-up confrontation can be contrived. See, 
United States v. Venere, 416 F. 2d 144 (5th Cir., 1969).

The Stovall case and the cases discussed immediately 
above make it clear that while the practice of showing 
suspects singly to witnesses for identification is widely 
condemned, each case of this type must be judged on its 
own facts and that convictions based on show-up iden­
tifications will be overturned only if the identification 
procedure was so impermissibly suggestive as to give 
rise to a very substantial likelihood of irreparable mis­
identification. See, Simmons v. United States, 390 U. S. 
377 at 384 (1967). Though the show-up is clearly a less 
reliable method of identification than the line-up, it is 
necessary in some circumstances and this Court does not 
subscribe to a rule that would prohibit its use as a matter 
of constitutional requirement. However, the “ totality 
of surrounding circumstances”  must be examined closely 
in this case to determine whether special circumstances 
or exigencies such as those described above existed which 
would warrant the use of the show-up instead of the more 
reliable line-up procedure.

On this basis the Court must conclude that the cir­
cumstances here present are not such as to warrant the 
show-up procedure and, consequently, that its use at peti­



—  A-54 —

tioner’s trial denied him due process of law. Respondent, 
arguing in support of the use of the show-up procedure, 
relies chiefly on the contention that a show-up was actu­
ally fairer to petitioner than a line-up would have been 
since no prisoners were readily available in either the 
Metro Jail or the juvenile home whose general description 
matched that of petitioner. To have conducted a line-up 
under these circumstances, contends respondent, would 
have had a greater tendency to cause a misidentification 
because in a dissimilar group the physical characteristics 
of petitioner, whose general description matched that of 
Mrs. Beamer’s assailant, would have been unduly accentu­
ated. This argument has perhaps some value but it is at 
best debatable. According to expert testimony produced 
by petitioner’s attorney, a line-up where no one had phys­
ical characteristics similar to petitioner would have been 
less preferable than one where members of the group all 
had certain similar characteristics but, in any event, would 
be preferable to a show-up. This conclusion is derived 
from the belief that any line-up would be a better test of 
the victim’s memory since it would demand the exercise of 
some selectivity in identification. Furthermore, there is 
no indication that a truly concerted effort was made to 
produce suitable subjects for a line-up. Aside from a 
phone call to the juvenile home and a screening of Metro 
Jail inmates no other efforts were made. There are sev­
eral other prison facilities in the area and there is no evi­
dence that any effort was made to screen them for sub­
jects. The Court sees no reason why this could not have 
been done in order to maximize the fairness of the identi­
fication process. Here, there was no evidence of any death­
bed urgency as in Stovall which would have precluded 
the police from delaying the identification procedure until 
a suitable line-up could have been arranged. The crime 
was seven months old, the victim was fully recovered and 
well, and there are no other indications that the ends of 
justice demanded an immediate show-up rather than a



— A-55 —

much more reliable line-up. Furthermore, none of the 
other circumstances which the above discussed cases in­
dicate may justify a show-up existed in the instant case. 
The evidence clearly shows that the complaining witness 
did not get an opportunity to obtain a good view of the 
suspect during the commission of the crime.2 Also, the 
show-up confrontation was not conducted near the time of 
the alleged crime, but, rather, some seven months after 
its commission.3 Finally the witness in the instant case 
was unable to give either an independent photographic 
identification of the suspect or a good physical descrip­
tion of her assailant.4 The nature of the show-up as con­
ducted in this case—with the great lapse of time between 
the crime and the identification, the hesitancy of the wit­
ness in identifying the petitioner,5 the circumstances of 
the stationhouse confrontation coupled with Mrs. Beamer’s 
knowledge that petitioner was thought by police to be 
her assailant,—tended to maximize the possibility of mis- 
identification of the petitioner. True, it may have been 
more convenient for the police to have a show-up. How­
ever, in matters of constitutional due process where police 
convenience is balanced against the need to extend basic 
fairness to the suspect in a criminal case, the latter value 
should always outweigh the former. In this case it ap­
pears to the Court that a line-up, which both sides admit 
is generally more reliable than a show-up, could have been 
arranged. The fact that this was not done tended need­
lessly to decrease the fairness of the identification process 
to which petitioner was subjected.

2 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.

3 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 ac­
companying text and cases.

s See United States v. Gilmore, supra, and accompanying text.



— A-56 —

Due process of law and basic fairness demand that the 
most reliable method of identification possible be used in 
a criminal case. See, Simmons v. United States, supra, at 
383-384. The conduct of the show-up in this case created 
an atmosphere which was so suggestive as to enhance the 
chance of misidentification and hence constituted a viola­
tion of due process.

Clearly, this identification did not amount to a harm­
less error, since the victim’s identification of petitioner 
was virtually the only evidence upon which the conviction 
was founded. See, Chapman v. California, 386 U. S. 18 
(1966).

In view of this conclusion, the Court finds it unneces­
sary to reach the issue of whether voice identification as 
used here amounted in itself to a violation of due process. 
It may be that the validity of such identification should 
normally be left to the jury. Since the voice identification 
took place during the show-up and the show-up procedure 
itself is unconstitutional as employed in this case, there 
is no reason to reach the specific issue raised concerning 
voice identification.

Accordingly, judgment will be entered granting the ap­
plication of Archie Nathaniel Biggers for a writ of habeas 
corpus, voiding the conviction obtained in the state court, 
and discharging the petitioner from custody after the state 
has had a reasonable time to retry him upon the same 
charge, any such new trial to be “ unaffected by Mrs. 
Beamer’s station-house identification and the testimony of 
the police officers who were present when it took place.”  
Biggers v. Tennessee, supra, at 409.

W l .  E. MILLER
United States District Judge



— A-57

APPENDIX D

In the District Court of the United States 
For the Middle District of Tennessee 

Nashville Division

Archie Nathaniel Biggers

v.

Lake F. Russell, Warden 
Tennessee State Penitentiary, 
Nashville, Tennessee

* Civil No. 5120

ORDER

(Filed July 29, 1969)

In this habeas corpus proceeding, the Court remains 
of the opinion, expressed in its Order entered on May 
12, 1969, that an evidentiary hearing is required to deter­
mine the issues in this cause. After reviewing the tran­
script and briefs, the Court desires open court testimony 
on the following matters: the nature of the “ show-up”  
identification process as opposed to the “ line-up” iden­
tification process, and why the former process was em­
ployed in the instant case; and, the general reliability of 
voice identification procedures, and their relative im­
portance compared with other methods of identification 
in linking the petitioner to the offense alleged in the 
instant action.

It is ORDERED that an evidentiary hearing, confined 
to these issues, be set by the Clerk at the earliest time 
consonant with the Court calendar.

WM. E. MILLER
(Seal) United States District Judge



—  A-58 —

APPENDIX E

In the District Court of the United States 
For the Middle District of Tennessee 

Nashville Division

Archie Nathaniel Biggers,
Petitioner,

y Civil No. 5120
Lake F. Bussell, Warden, 

Tennessee State Penitentiary,
Respondent.

ORDER

(Filed May 12, 1969)

This action involves a motion by the respondent to dis­
miss the petition for writ of habeas corpus filed by Archie 
Nathaniel Biggers. The petitioner was convicted of rape 
in the Criminal Court of Davidson County, Tennessee, in 
1965. The judgment was affirmed by the Supreme Court 
of Tennessee and then by an equally divided Supreme 
Court of the United States early in 1968. Biggers has 
now petitioned the Court for a hearing on his writ of 
habeas corpus, pursuant to 28 U.S.C. § 2241.

Respondent maintains that the constitutional questions 
here raised by the petitioner have been fully considered 
and decided adversely to him by the United States 
Supreme Court. It is the position of the respondent that 
the Court should not, therefore, redetermine the same 
issues.

Though the present case has been argued before the 
Supreme Court, the decision of that Court is without



—  A-59 —

force as precedent. When the Supreme Court is equally 
divided as to the outcome of a case, the judgment is au­
tomatically affirmed without opinion. Etting v. Bank of 
the United States, 24 U.S. 59 (1826). Had there been a 
more conclusive decision regarding the legal questions in 
the present case, the Court could easily decline any further 
review. There would be little reason for the Court to 
rehear arguments previously rejected by the highest 
judicial authority. But the Supreme Court did not settle 
the merits of this case, and affirmed only through an equal 
split in opinion. The Court therefore concludes that it 
is not precluded from hearing evidence on the petitioner’s 
allegations, and the respondent’s motion to dismiss is 
hereby denied.

The Court being of the opinion that an evidentiary hear­
ing is required to determine the factual issues in this 
cause, it is ORDERED that a hearing be set by the Clerk 
at the earliest time consonant with the Court Calendar. 
Any analysis of the merits of the petitioner’s contentions 
will be deferred until after the evidentiary hearing.

WM. E. MILLER 
United States District Judge(Seal)



—  A-60 —

APPENDIX F

No. 237. ARCHIE NATHANIEL BIGGERS, Petitioner, 
v. TENNESSEE, 390 U.S. 1037.

April 22, 1968. Petition for rehearing denied. Mr. 
Justice Marshall took no part in the consideration or de­
cision of this petition.

Former Decision, 390 US 404.



—  A-61 —

APPENDIX G 

*[390 US 404]

*ABCHIE NATHANIEL BIGGERS, Petitioner,
v

STATE OF TENNESSEE

390 US 404, reh. den. 390 US 1037 

[No. 237]

Argued January 15, 1968. Decided March 18, 1968. 

# # # # # * #

Appearances of Counsel
Michael Meltsner argued the cause for petitioner. 
Thomas E. Pox argued the cause for respondent.

Per Curiam.

The judgment below is affirmed by an equally divided 
Court.

Mr. Justice Marshall took no part in the consideration 
or decision of this case.

Mr. Justice Douglas, dissenting.1

Petitioner was indicted for a rape committed when he 
was 16 years old, was convicted, and after a trial by a 
jury sentenced to 20 years, first to a juvenile facility and 
later to prison. The Supreme Court of

1 As respects the practice of Justices setting forth their views 
in a ease where the judgment is affirmed by an equally divided 
Court, see Communications Assn. v. Douds, 339 US 382, 412- 
415, 422; Osman v. Douds, 339 US 846, 847; In re Isse’rman, 
345 US 286, 348 US 1; Raley v. Ohio, 360 US 423, 440; Eaton 
v. Price, 364 US 263, 264.



—  A-62 —

*[390 US 405]

Tennessee affirmed *the judgment of conviction. Biggers 
v State, 219 Tenn 553, 411 SW2d 696.

On the night of January 22, 1965, Mrs. Beamer was at 
home sewing, when an intruder with a butcher knife in 
his hand grabbed her from the rear. Her screams brought 
her 13-year-old daughter, who, arriving at the scene, also 
started to scream. The intruder said to Mrs. Beamer, 
“ You tell her to shut up, or I ’ll kill you both.”  Mrs. 
Beamer ordered her daughter to a bedroom, and the in­
truder took Mrs. Beamer out of the house to a spot two 
blocks away and raped her.

During the next seven months the police showed Mrs. 
Beamer numerous police photographs, one of which, she 
said, showed a man who “ had features”  like the intruder. 
The case lay dormant. Mrs. Beamer was unable to 
describe the rapist other than to state he was fat and 
“ flabby,”  had a youthful voice, smooth skin, and “ sort of 
bushy”  hair.

On August 17, 1965, petitioner, still only 16 years old, 
was arrested for the rape of another woman. On the 
same day the police brought Mrs. Beamer to the police 
station to “ look at a suspect.”  They brought petitioner 
to the doorway of the room where she sat. She asked the 
police to have him speak and they told him to repeat the 
words spoken by the rapist, “ Shut up, or I ’ll kill you.”  
Only after he had spoken did Mrs. Beamer identify peti­
tioner as the man who had raped her; she testified that it 
was petitioner’s voice that “ was the first thing that made 
me think it was the boy.”  So far as the record indicates, 
at the time of this confrontation neither the parents of 
petitioner nor any attorney acting for him had been ad­
vised of the intended meeting with Mrs. Beamer.



—  A-63 —

The indictment followed. At the trial the daughter 
testified to what she had seen the evening of the rape, but 
was unable to identify petitioner as the rapist. The only 
evidence connecting him with the

*[390 US 406]
rape was Mrs. *Beamer’s stationhouse identification. She 
did not identify him in the courtroom.2 She testified that 
she had identified him by his size, his voice, his smooth 
skin, and his bushy hair. Three of the five police officers 
who were present at the identification testified over ob­
jection in corroboration of Mrs. Beamer’s reaction at the 
confrontation.

This procedure of identification violates, of course, 
United States v Wade, 388 US 218, and Gilbert v Cali­
fornia, 388 US 263. Those were cases of lineups and this 
was not. Yet, though they recognized a suspect’s right 
to counsel at that critical stage, the Court announced they 
would not have retroactive effect.

Stovall v Denno, 388 US 293, and Simmons v United 
States, 390 US 377, make it clear, however, that independ­
ent of any right to counsel claim, a procedure of identifica­
tion may be “ so unnecessarily suggestive and conducive 
to irreparable mistaken identification”  that due process 
of law is denied when evidence of the identification is used 
at trial. Stovall v Denno, supra, at 302. The claim that 
Mrs. Beamer’s identification of petitioner falls within this 
rule “ must he evaluated in light of the totality of sur­

2 Respondent contends that Mrs. Beamer made an in-court 
identification of petitioner as the rapist. But the portions of 
the record relied on do not support this claim. After Mrs. 
Beamer had described the station-house identification, the prose­
cutor asked her, “ Is there any doubt in your mind today?” She 
replied, “No, there’s no doubt.” The inference to be drawn is 
that Mrs. Beamer had no current doubt as to the correctness of 
her previous identification of petitioner at the police station.



—  A-64 —

rounding circumstances ”  with the view of determining if 
the procedure in petitioner’s case “ was so unduly preju­
dicial as fatally to taint his conviction.”  Simmons v 
United States, supra.

In Simmons, identification by use of photographs rather 
than a lineup was upheld because the bank

*[390 US 407]
robbers *were still at large, the FBI had to quicky deter­
mine wdiether it was on the right track in looking for 
Simmons, the witnesses’ memories were fresh since the 
robbery was but a day old, and because the photos pic­
tured persons in addition to petitioner. In Stovall, a sin­
gle-suspect confrontation held in a hospital room was 
found to comport with due process because the stabbing 
victim, the sole source of identification, was in danger of 
death—to have conducted a lineup would have entailed 
perhaps fatal delay.

We have no such problem of compelling urgency here. 
There was ample time to conduct a traditional lineup. 
This confrontation was crucial. Petitioner stood to be 
free of the charge or to account for it, dependent on what 
Mrs. Beamer said. Whatever may be said of lineups, 
showing a suspect singly to a victim is pregnant -with 
prejudice. The message is clear: the police suspect this 
man. That carries a powerfully suggestive thought. Even 
in a lineup the ability to identify the criminal is severely 
limited by normal human fallibilities of memory and per­
ception. When the subject is shown singly, havoc is more 
likely to be played with the best-intended recollections.

As noted, in Simmons, where identification was by 
photograph, the Court stressed that identification was 
made only a day after the crime while “ memories were 
still fresh.”  Id. at 1254. Here, however, Mrs. Beamer



—  A-65 —

confronted petitioner seven months after the rape, and 
the sharpness of her recall was being severely tested. In 
Simmons, too, the Court emphasized that the five witnesses 
had seen the robbers “ in a well-lighted bank.”  Ibid. 
Here, however, there was “ [n]o light in the hall”  where 
Mrs. Beamer was first assaulted; from that hall, the as­
sailant took her out of the house through a kitchen where 
there was “ no light,”  and the railroad track where the 
rape occurred was illumi-

*[390 US 408]

mated only by *the moon. Indeed, the best view Mrs. 
Beamer had of petitioner was in the hall by indirect light 
from a nearby bedroom.

In Simmons, the record did not indicate that the FBI 
told the witnesses which of the men in the photographs 
were suspects. Here, on the other hand, the police told 
Mrs. Beamer when they brought her to the station house 
that the man she would see was a “ suspect.”

Moreover, unlike the Simmons case, identification here 
rested largely on voice. The fact that petitioner had 
“ the voice of an immature youth”  to use Mrs. Beamer’s 
words, merely put him in a large class and did not relate 
him to speech peculiar to him. Voice identifications in­
volve “ grave danger of prejudice to the suspect,”  as the 
Court of Appeals for the Fourth Circuit said in Palmer v 
Peyton, 359 F2d 199, 201. No one else identified petitioner. 
The daughter could not; and Mrs. Beamer did not identify 
him in the courtroom. Petitioner was young and ap­
parently had no previous police record. There was no 
other shred of evidence against him.

Under the circumstances of this case it seems plain that 
the police maximized the suggestion that petitioner com­
mitted the crime.



—  A-66 —

Of course, due process is not always violated when the 
police fail to assemble a lineup but conduct a one-man 
showup. Plainly here, however the highly suggestive at­
mosphere that had been generated by the manner in which 
this showup was arranged and conducted could not have 
failed to affect Mrs. Beamer’s judgment; when she was 
presented with no alternative choices, “ there [was] then 
a strong predisposition to overcome doubts and to fasten 
guilt upon the lone suspect.”  Palmer v Peyton, supra, at 
201. The conclusion is inescapable that the entire at­
mosphere created by the police surrounding Mrs. Beamer’s 
identification was so suggestive

*[390 US 409]

*that use at trial of her stationhouse identification con­
stituted a violation of due process. Since this was the 
only evidence of identification, there can be no question 
of harmless error. See Chapman v California, 386 US 18.

Petitioner is entitled to a new trial unaffected by Mrs. 
Beamer’s station-house identification and the testimony 
of the police officers who were present when it took place. 
See Gilbert v California, supra, at 272-273.

The fact that petitioner is a Negro, and Mrs. Beamer 
also, is of course irrelevant to the due process question.



—  A-67 —

APPENDIX H

NO. 1562, MISC. ARCHIE NATHANIEL BIGGERS, 
PETITIONER, V TENNESSEE

388 US 909

June 12, 1967. Motion for leave to proceed in forma 
pauperis and petition for writ of certiorari to the Supreme 
Court of Tennessee, Middle Division, granted. Case trans­
ferred to the appellate docket and placed on the summary 
calendar and set for oral argument immediately following 
No. 1087.



—  A-68 —

APPENDIX I

Archie Nathaniel Biggers, Plaintiff in Error,
v.

The State of Tennessee, Defendant in Error.

219 Tenn. 553 
411 S.W.2d 696.

(Nashville, December Term, 1966.) 

Supreme Court of Tennessee 

Opinion Filed January 12, 1967.

Petition for Behearing Denied March 1, 1967.

From Davidson

# # # # # # #

Mr. Justice Dyer delivered the opinion of the Court.
Plaintiff in error, Archie Nathaniel Biggers, herein re­

ferred to as defendant, appeals from a conviction of rape 
for which he has been sentenced to serve twenty (20) 
years in the State Vocational Training School for Boys. 
Defendant at the time of the crime was sixteen years old.

The victim, Mrs. Margaret Beamer, is a married woman 
with five children. On the night of 22 January 1965 she 
was at home in her living room sewing. About 9:00 p.m. 
she started from her living room to the bedroom, which 
rooms are separated by a hall, and as she reached the hall 
defendant, with a butcher knife in his hand, grabbed her



—  A-69 —

from behind pulling her to the floor. Her screams brought 
her daughter out of a bedroom into the hall and when the 
daughter saw what was happening she also began to 
scream. Defendant said to Mrs. Beamer, “ You tell her to 
shut up or I ’ll kill you both.”  Mrs. Beamer ordered the 
daughter back into the bedroom. Defendant escorted 
Mrs. Beamer out the back door of the house to a spot 
about two blocks away where he had sexual relations with 
her. Upon completion of the sexual act defendant ran 
away and Mrs. Beamer, returning home, notified police. 
About 10:15 p.m. on this night Mrs. Beamer was medically 
examined which revealed she had had sexual intercourse 
within three (3) hours prior to that time.

During the early hours of 17 August 1965 defendant 
was arrested for an incident occurring on this night of 
his arrest and immediately taken to Juvenile Aid. Defend­
ant’s mother came to Juvenile Aid and in her presence 
he was fully advised of his constitutional rights. Later 
on in the morning defendant was released to the Police 
Department and Mrs. Beamer, at Police Headquarters, 
identified defendant as the person who raped her on 22 
January 1965.

Defendant as a witness in his own behalf denied any 
knowledge of the crime. Several witnesses testified to his 
good character.

The assignments of error are as follows:

1. The evidence preponderates against the verdict 
of the jury and in favor of the innocence of the 
accused.

2. The defendant was prejudiced when a witness for 
the State mentioned other offenses allegedly com­
mitted by the defendant for which he was not on 
trial and for which he had not previously been con­
victed.



—  A-70 —

3. The defendant was prejudiced when the Attorney 
General went outside the evidence in the case while 
making his final argument to the jury.

4. The defendant was required to give evidence 
against himself without having been advised of his 
constitutional rights.

5. The defendant was prejudiced by the action of 
the Trial Court in refusing to require the State to 
furnish him a transcript of the trial proceedings.

[1, 2] The first assignment of error is predicated upon 
the ground the identity of defendant by the victim was so 
vague, uncertain and unsatisfactory and given under such 
circumstances as not to have any substantial probative 
value. This identification was made based upon the de­
fendant’s size, voice, skin texture and hair. On identifica­
tion the trial judge asked the victim, “ All right. Is there 
any doubt in your mind.”  To which the victim replied, 
“ No, there’s no doubt.”  Identification is a question of 
fact for the jury. Stubbs v. State, 216 Tenn. 567, 393 
S.W.2d 150 (1965). The first assignment of error is over­
ruled.

Under the second assignment of error it is alleged 
Thomas E. Cathey a member of the Metropolitan Police 
Department, as a witness for the State, mentioned other 
offenses allegedly committed by defendant. In defend­
ant’s brief these references to other crimes are described 
as being “ by inference.”  We have carefully examined the 
pages of the transcript cited and find no reference to 
other crimes. The assignment of error is overruled.

Objection is made, under the third assignment of error, 
to the following argument by the Assistant District At­
torney General:



A-71 —

In many parts of our United States, Gentlemen of the 
Jury, a case of this nature would never go to trial, 
and I am sorry to say, its all south of the State of 
Tennessee, and that is because of this fine woman, 
Mrs. Beamer’s environment, economic circumstances, 
and situation, she is not considered in those states to 
have any more rights than a dog and her reproductive 
organs—

[3] The argument above was not completed due to ob­
jection by defendant which was sustained by the court. 
The Assistant District Attorney General did not pursue 
this line of argument further. Both the defendant and 
the victim were members of the Negro race, a fact, of 
course, known to the jury. It is insisted, under these cir­
cumstances, this argument was an appeal to racial preju­
dice. We agree this line of argument was improper, hut 
in light of the prompt action of the trial judge we think 
such was harmless error. The third assignment of error 
is overruled.

Mrs. Beamer and defendant, for the purpose of pos­
sible identification, were brought together at Police Head­
quarters. Mrs. Beamer requested police have defendant 
repeat in her presence some of the words her assailant 
had used at the time of the rape. The words requested 
were, “ Stop or I ’ll kill you.”  Defendant, upon instruc­
tions of police, repeated these words and Mrs. Beamer 
bases her identification of defendant as her assailant 
partly upon his voice. Under the fourth assignment of 
error it is alleged requiring defendant to speak these 
words for the purpose of identification violated his con­
stitutional right against self-incrimination.

While the exact problem presented here has not been 
before this Court, yet we think it is controlled by the 
logic and reason used by the court in the case of Barrett



—  A-72 —

v. State, 190 Tenn. 366, 229 S.W.2d 516 (1950). The 
Barrett case involved a defendant required to wear a hat 
at the time he was being identified. This court, rejecting 
the argument such was a violation of defendant’s privi­
lege against self-incrimination, quoted from Wigmore on 
Evidence, 3 Ed. Section 2265, p. 375 as follows:

“ Unless some attempt is made to secure a com­
munication, written or oral, upon which reliance is 
to be placed as involving his consciousness of the 
facts and the operations of her mind in expressing 
it, the demand made upon him is not a testimonial 
one.”  190 Tenn. 372, 229 S.W. 2d 519.

A thorough analysis of the problem presented can be 
found in 8 Wigmore on Evidence, sec. 2265, at pp. 386, 
396 (McNaughton, rev. 1961). In analyzing this consti­
tutional privilege Dean Wigmore lists eleven (11) prin­
cipal categories which he specifically states are not 
covered. Category No. 7 is; “ Requiring a suspect to 
speak for identification.”  A  number of cases are cited for 
the proposition a defendant’s rights are not violated 
when he is forced to speak certain words solely for the 
purpose of identification. See above citation in Wigmore.

[4] In the instant case defendant was told what words 
to say and in repeating them he did not give any factual 
information tending to connect him with the crime; nor 
could any reliance be placed on these words which would 
indicate defendant was conscious of, or had knowledge of, 
any facts of the crime. The only thing he gave was the 
sound of his voice to be used, along with other things, 
solely for the purpose of identification. Under these 
circumstances we do not think defendant’s constitutional 
right against self-incrimination was violated. The fourth 
assignment of error is overruled.

[5] Under T.C.A. sec. 40-2037 et seq. the State is re­
quired to furnish to an indigent defendant a transcript



—  A-73 —

upon request. The trial judge determines if the defendant 
is indigent and in this case determined defendant was not 
indigent. We find no error in this determination by the 
trial judge. The fifth assignment of error is overruled.

Judgment affirmed.

B urnett, Chief J ustice, Chattin and Creson, J ustices, 
and H arbison, Special J ustice, concur.