## Facts

- In 1965, Archie Nathaniel Biggers was convicted of rape in Tennessee state court and sentenced to 20 years.
- The prosecution relied heavily on the victim’s visual and voice identification of Biggers during a station-house one-on-one showup conducted about seven months after the assault.
- The victim was with the assailant for a considerable period, including in a well-lit kitchen and outside under a full moon.
- Shortly after the crime, the victim provided police a description later corroborated by an officer’s notes; she later testified to further details about the assailant’s age range, height, weight, complexion, build, hair, and voice.
- Over the seven-month period, the victim viewed numerous suspects (via lineups and showups) and reviewed approximately 30–40 photographs, making no identification.
- After police detained Biggers on another matter, they arranged a one-person showup because they could not locate comparable individuals for a lineup; two detectives walked Biggers past the victim.
- At the victim’s request, officers had Biggers repeat words used by the attacker (“shut up or I’ll kill you”); the record was unclear whether the identification occurred before or after he spoke.
- The victim testified she had no doubt Biggers was the assailant.
- After state appellate review, the Supreme Court previously affirmed the conviction by an equally divided Court.
- Biggers then sought federal habeas relief; the district court and Sixth Circuit found the confrontation procedure violated due process, and the Supreme Court granted review.

## Issues

1. Whether an earlier Supreme Court affirmance by an equally divided Court is an “actual adjudication” that bars federal habeas relief under 28 U.S.C. § 2244(c).
2. Whether the station-house showup was so unnecessarily suggestive as to violate due process by creating a very substantial likelihood of irreparable misidentification.

## Decision

- The Court held that an equally divided affirmance ends direct review but settles no issue of law and therefore does not bar federal habeas review under § 2244(c).
- The Court held that, although the one-person showup was suggestive, the identification was sufficiently reliable under the totality of the circumstances and its admission did not violate due process.
- The Court affirmed in part, reversed in part, and remanded, leaving the conviction intact.
- Justice Brennan (joined by Justices Douglas and Stewart) concurred on the habeas question but dissented on the due process ruling; Justice Marshall did not participate.

## Legal Principles

- An affirmance by an equally divided Supreme Court does not constitute precedent and is not an “actual adjudication” barring later federal habeas review under 28 U.S.C. § 2244(c).
- Due process exclusion is not required solely because an identification procedure was unnecessarily suggestive; the controlling question is reliability under the totality of the circumstances.
- The “primary evil” to be avoided is a very substantial likelihood of irreparable misidentification.
- Reliability is assessed by considering: (1) the witness’s opportunity to view the perpetrator, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description, (4) the level of certainty shown at the confrontation, and (5) the time between the crime and the confrontation.
- A showup may be suggestive and less reliable than a lineup, but identification evidence may still be admitted if these factors indicate no substantial likelihood of misidentification.

## Conclusion

The Court ruled that an equally divided affirmance does not bar federal habeas review and that suggestive identification procedures violate due process only when, considering the totality of the circumstances and the listed reliability factors, they create a very substantial likelihood of irreparable misidentification.


Neil v. Biggers, 409 U.S. 188 (1972)