# Neil v. Biggers

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Neil v. Biggers, 409 U.S. 188 (1972), was a case decided by the Supreme Court of the United States in 1972. The case concerned the reliability of a police lineup. In a 6-3 decision authored by Justice Lewis F. Powell Jr., the Court concluded that its prior tie on Biggers' case did not preclude relief and that the identification procedure at issue did not violate the Due Process Clause.

## Concurrence/Dissent

    Brennan
Supreme Court of the United States
409 U.S. 188
Neil, Warden v. Biggers
Certiorari to the United States Court of Appeals for the Sixth Circuit
No. 71-586. Argued: October 18-19, 1972 --- Decided: December 6, 1972
Respondent was convicted of rape on evidence that consisted in part of testimony concerning the victim's visual and voice identification of respondent at a station-house showup that occurred seven months after the rape. The victim, who had been in the presence of her assailant a considerable time and had directly observed him indoors and under a full moon outdoors, testified that she had "no doubt" that respondent was her assailant. She had previously given the police a description of her assailant, which was confirmed by a police officer. Before the showup where she identified respondent, the victim had made no identification of others who were presented at previous showups, lineups, or through photographs. The police asserted that they used the showup technique because they had difficulty in finding for a lineup other individuals generally fitting respondent's description as given by the victim. The Tennessee Supreme Court's affirmance of the conviction was affirmed here by an equally divided Court. 390 U.S. 404. Respondent then brought a habeas corpus action in District Court. After rejecting the petitioner's contention that this Court's affirmance constituted an actual adjudication within the meaning of 28 U.S.C. § 2244 (c) and thus barred further review of the showup identification in a federal habeas corpus proceeding, the District Court, noting that a lineup is relatively more reliable than a showup, held that the confrontation here was so suggestive as to violate due process. The Court of Appeals affirmed.
Held:
    1. This Court's equally divided affirmance of respondent's state court conviction does not, under 28 U.S.C. § 2244 (c), bar further federal relief by habeas corpus, since such an affirmance merely ends the process of direct review but settles no issue of law. Pp. 190-192.
    2. While the station-house identification may have been suggestive, under the totality of the circumstances the victim's identification of respondent was reliable and was properly allowed to go to the jury. Pp. 196-201.
448 F.2d 91, affirmed in part, reversed in part, and remanded.
POWELL, J., delivered the opinion of the Court, in which C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which DOUGLAS and STEWART, JJ., joined, post, p. 201. MARSHALL, J., took no part in the consideration or decision of the case.
Bart C. Durham III, Assistant Attorney General of Tennessee, argued the cause for petitioner. With him on the brief was David M. Pack, Attorney General.
Michael Meltsner argued the cause for respondent. With him on the brief were Jack Greenberg, Anthony G. Amsterdam, Avon N. Williams, Jr., and Z. Alexander Looby.
Louis J. Lefkowitz, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging reversal.
Shirley Fingerhood, Richard G. Green, Burt Neuborne, and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.