# Neil v. Biggers/Concurrence-dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissent Brennan
[p201] MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE STEWART concur, concurring in part and dissenting in part.
We granted certiorari in this case to determine whether our affirmance by an equally divided Court of respondent's state conviction constitutes an actual adjudication [p202] within the meaning of 28 U.S.C. § 2244 (c), and thus bars subsequent consideration of the same issues on federal habeas corpus. The Court holds today that such an affirmance does not bar further federal relief, and I fully concur in that aspect of the Court's opinion. Regrettably, however, the Court also addresses the merits and delves into the factual background of the case to reverse the District Court's finding, upheld by the Court of Appeals, that under the "totality of the circumstances," the pre-Stovall showup was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. This is an unjustified departure from our long-established practice not to reverse findings of fact concurred in by two lower courts unless shown to be clearly erroneous. See, e.g., Blau v. Lehman, 368 U.S. 403, 408-409 (1962); Faulkner v. Gibbs, 338 U.S. 267, 268 (1949); United States v. Dickinson, 331 U.S. 745, 751 (1947); United States v. Commercial Credit Co., 286 U.S. 63, 67 (1932); United States v. Chemical Foundation, 272 U.S. 1, 14 (1926); Baker v. Schofield, 243 U.S. 114, 118 (1917); Towson v. Moore, 173 U.S. 17, 24 (1899); cf. Boulden v. Holman, 394 U.S. 478, 480-481 (1969).
As the Court recognizes, a pre-Stovall identification obtained as a result of an unnecessarily suggestive showup may still be introduced in evidence if, under the totality of the circumstances," the identification retains strong indicia of reliability. After an extensive hearing and careful review of the state court record, however, the District Court found that, under the circumstances of this case, there existed an intolerable risk of misidentification. Moreover, in making this determination, the court specifically found that "the complaining witness did not get an opportunity to obtain a good view of the suspect during the commission of the crime," "the show-up confrontation was not conducted near the time of the alleged crime, but, rather, some seven months after its [p203] commission," and the complaining witness was unable to give "a good physical description of her assailant" to the police. App. 41-42. The Court of Appeals, which conducted its own review of the record, upheld the District Court's findings in their entirety. 448 F.2d 91, 95 (CA6 1971).
Although this case would seem to fall squarely within the bounds of the "two-court" rule, the Court seems to suggest that the rule is "inapplicable here" because "this is a habeas corpus case in which the facts are contained primarily in the state court record (equally available to us as to the federal courts below)...." Ante, at 193 n. 3. The "two-court" rule, however, rests upon more than mere deference to the trier of fact who has a firsthand opportunity to observe the testimony and to gauge the credibility of witnesses. For the rule also serves as an indispensable judicial "time-saver," making it unnecessary for this Court to waste scarce time and resources on minor factual questions which have already been accorded consideration by two federal courts and whose resolution is without significance except to the parties immediately involved. Thus, the "two-court" rule must logically apply even where, as here, the lower courts' findings of fact are based primarily upon the state court record.
The Court argues further, however, that the rule is irrelevant here because, in its view, "the dispute between the parties is not so much over the elemental facts as over the constitutional significance to be attached to them." Ante, at 193 n. 3. I cannot agree. Even a cursory examination of the Court's opinion reveals that its concern is not limited solely to the proper application of legal principles but, rather, extends to an essentially de novo inquiry into such "elemental facts" as the nature of the victim's opportunity to observe the assailant and the type of description the victim gave [p204] the police at the time of the crime. And although we might reasonably disagree with the lower courts' findings as to such matters, the "two-court" rule wisely inhibits us from cavalierly substituting our own view of the facts simply because we might adopt a different construction of the evidence or resolve the ambiguities differently. On the contrary, these findings are "final here in the absence of very exceptional showing of error." Comstock v. Group of Institutional Investors, 335 U.S. 211, 214 (1948). The record before us is simply not susceptible of such a showing and, indeed, the petitioner does not argue otherwise. I would therefore dismiss the writ of certiorari as improvidently granted insofar as it relates to Question 2 of the Questions Presented.