Biggers v. Tennessee

PETITIONER:Biggers
RESPONDENT:Tennessee
LOCATION:South Boston Court

DOCKET NO.: 237
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 390 US 404 (1968)
ARGUED: Jan 15, 1968
DECIDED: Mar 18, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – January 15, 1968 in Biggers v. Tennessee

Earl Warren:

Number 237, Archie Nathaniel Biggers, petitioner versus Tennessee.

Mr. Meltsner.

Michael Meltsner:

Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of Tennessee to review a 16-year old boy’s conviction and sentenced to 20 years in prison for the crime of rape.

Because the primary question in this case is whether the total circumstances surrounding petitioner’s identification and its use at trial violated the Due Process Clause of the Fourteenth Amendment.

I intend to state the facts in some detail.

On the night of January 22, 1965 Mrs. Margaret Beamer, a Negro nurse was sewing in the living room of her Nashville, Tennessee home.

Her 12-year old daughter was in a bedroom, listening to phonograph records and a six-year old son was asleep in another bedroom.

The living room was a lit by a single lamp and the lights were off in an adjoining hallway and kitchen.

At about 9:10 pm Mrs. Beamer rose and entered this hallway.

She was grabbed from behind and pushed to the floor by an intruder holding a long butcher knife.

She began to scream and sob, and her 12-year old daughter came to the door of the adjacent bedroom and also began to scream when she saw her mother and the assailant.

Intruder then said, “Shut up or I’ll kill you both, to the women,” and he had Mrs. Beamer order her daughter back into the bedroom.

He then forced her to walk through an unlit kitchen, out behind the house up in an embankment to some railroads tracks and took her to a place in the woods where he raped her.

The only light behind the house came from the moon, streetlights which were located in front of the house; there were no lights on the tracks.

Does the record show how old is the woman?

Michael Meltsner:

The only place it does is in newspaper story introduced in evidence by the prosecution, and I believe she is 39 from that story.

These events lasted from 10 to 30 minutes at the most and Mrs. Beamer testified that throughout she was frightened in fear and crying.

After the rape, the rapist ran away and Mrs. Beamer reported the crime to the police.

After she did this at dates and times and under circumstances which the record does not particularly reveal, she was shown 30 or 40 photographs from police files and saw a several suspects at headquarters.

However, the record is quite clear that she never was shown the petitioner in this case at these viewings.

William J. Brennan, Jr.:

Now let’s see, what was the date of the incident?

Michael Meltsner:

Date of the incident was January 22, 1965.

William J. Brennan, Jr.:

And what was the period over which she was shown these photographs?

Michael Meltsner:

The record does not say.

She was shown these photographs, but at no time did the state introduce evidence, showing the dates, how long over the period of time between the crime and the eventual identification proceeding.

William J. Brennan, Jr.:

But the record does show, you’re saying that none of the confrontation whether by photograph or otherwise, until she identified this petitioner, was this petitioner –?

Michael Meltsner:

Quite clearly, she was asked at one point, did you know who raped you before the pretrial identification.

She said no.

A police officer testified that he had never shown photographs of the petitioner to her, the petitioner took the stand, was not cross-examined about a criminal record.

William J. Brennan, Jr.:

Now, when did they pick the petitioner?

Michael Meltsner:

Well, that took place, that took place seven months later.

William J. Brennan, Jr.:

It’s January, you mean August?

Michael Meltsner:

In August of 1965.

Abe Fortas:

Did the police show this woman other pictures at various times and with result that she failed or refused to identify any of the other pictures as her assailant?

Michael Meltsner:

She was shown some 30 or 40 photographs.

Abe Fortas:

Prior to the time when she was shown the batch of photographs that included the petitioner?

Michael Meltsner:

No, the photographs she was shown did not include the petitioner.

She was shown 30 or 40 photographs from police files, she was never shown a picture of the petitioner.

The record does not show whether she saw these photographs a day after the crime or a week after the crime, although I must confess my reading of the record, it certainly seems to be that way.

That’s the impression, but certainly the record does, is really — is not clear on this point.

Abe Fortas:

Yes, but in any event she was shown some photographs of some people and she failed or refused to identify any one of them as the, her assailant?

Michael Meltsner:

She did see one person who she said had features like the rapist, but other than that she identified, I mean she saw —

William J. Brennan, Jr.:

So in person she saw photographs?

Michael Meltsner:

It’s not clear whether it was a direct viewing or through a photograph as I recall.

Byron R. White:

You mean the indications are that she knew what the features of the rapist’s really were like?

Michael Meltsner:

She said that one person had features like the rapist.

Now, when she gave a description to the police at the time the crime was reported, a police officer wrote down what she said and he described it as, “she told me as best she could,” and he wrote it down and this came out in the course of the trial.

The state never offered this contemporaneous description or the record of it into evidence at the trial nor did Mrs. Beamer ever testify as to the —

Byron R. White:

Nor did she ever say that this defendant’s features were like those she remembered in the rapist?

Michael Meltsner:

That’s correct, that’s correct.

She talked totally in terms of the pretrial identification, almost totally.

She never referred back to the crime.

Byron R. White:

That was only by voice?

Michael Meltsner:

Pardon me.

Byron R. White:

That was only by voice?

Michael Meltsner:

Well, she didn’t identify him until he spoke.

He was called into a room.

She was sitting there with five police officers but there was no lone up and she then requested the police to have him speak and she said, have him say, “Shut up or I’ll kill you,” and the police officer said say it, say it boy, and he hesitated.

And he said, say it and then the petitioner said, “Shut up or I’ll kill you.”

William J. Brennan, Jr.:

How old is the petitioner?

Michael Meltsner:

16.

William J. Brennan, Jr.:

At that time?

Michael Meltsner:

At that time.

Earl Warren:

How did the description that she gave at the beginning compare with this petitioner, you may answer that after lunch?

[Luncheon Recess]

You may continue your argument.

Michael Meltsner:

To answer the question you asked, before the recess Mr. Chief Justice, at trial a police officer revealed that a written report of Mrs. Beamer’s description had been taken down at the time she reported the crime, but the state never offered this description into evidence nor did Mrs. Beamer testify about the character of her initial description.

Now, seven months —

Earl Warren:

Now, that’s on the record at all?

Michael Meltsner:

The only thing on the record is that a description was taken down and not offered, that appears on page 50 of the record.

I think under accepted — to get ahead to my argument under accepted canons, the fact the state failed to offer this report must be taken to harm rather than help the state’s case for Mrs. Beamer’s reliability.

Seven months after the crime on the night of August 16, 1965, a Nashville woman was assaulted.

The police arrested petitioner, Archie Biggers, a 16-year old Negro with no previous record of trouble with the police as he was receiving medical attention at a local hospital —

Earl Warren:

For what?

Michael Meltsner:

The newspaper stories, which are the only source of information in the record, state that he claimed he had been cut and he was with his mother at the hospital.

The police arrested him and took him to a juvenile detention facility.

His mother was with him and she was told of what the record only characterizes as his rights, and the police announced in the newspapers that they were going to question him about a series of rapes.

The following day two police officers went to Mrs. Beamer’s home, told her that they had a suspect they wanted her to look at and brought her to police headquarters.

She was seated in a room with five police officers, but no lineup was held.

The petitioner was brought to the door of the room and after looking at him, she asked the police to have him speak, and after he spoke these words of the assailant “Shut up or I’ll kill you”, she identified him.

His mother, father and retained attorney were not present.

Earl Warren:

Why did he use those words?

Michael Meltsner:

Because he was told to say them by the police.

Biggers —

Byron R. White:

[Inaudible]

Michael Meltsner:

Yes.

Earl Warren:

Seven months before?

Michael Meltsner:

Seven months before.

Biggers was indicted with rape — indicted for rape, a capital offense in Tennessee, but at trial the only evidence tying him to the crime was Mrs. Beamer’s testimony on direct examination that she had identified him in August at the police station and that he spoke the words of the rapist.

Michael Meltsner:

At first she denied ever having seen him, that appears on page 9 of the record.

She then changed her — the course of her testimony and described the pretrial identification.

Earl Warren:

Let’s see what — would you repeat that again?

She first said she had not seen —

Michael Meltsner:

She was asked on page 9 of the record by the prosecuting attorney, “Now getting to the central facts of this case, have you ever seen the defendant before?”

She said no.

She then changed the course of her testimony and the described the pretrial identification.

Four policemen also testified on direct —

Abe Fortas:

Well here is that — you don’t really read that part of the transcript to indicate you — that was testimony that she didn’t recognize the defendant?

Michael Meltsner:

Well I think it reflects on her certainty.

This is a due process case and in a sense everything counts and the fact that she —

Abe Fortas:

No, no, no.

Things that don’t count, don’t count.

Michael Meltsner:

Well I think it counts that the first answer was no.

Abe Fortas:

First — what do you suppose she understood this question to mean?

Michael Meltsner:

Well, it was asked twice, in two different ways and both times —

Abe Fortas:

Where’s the other place?

Michael Meltsner:

Right, two or three lines below it, “Was the defendant at any time at your home?”

“If he was, I didn’t see him”.

It’s an extremely peculiar first response, and I grant Your Honor it’s totally inconsistent to remainder of her testimony.

Abe Fortas:

Well, what I’m saying, in context, it seems to me perhaps I’m wrong that Mrs. Beamer was saying that in between the time of the assault upon her and the trial, she had not seen the defendant.

Otherwise the whole thing is nonsense.

Michael Meltsner:

It maybe that’s what she meant, but I don’t think the question is directed to that in turns at least.

Hugo L. Black:

What do you think she meant?

I like my brother Fortas I don’t see why you should make anything out of that?

Michael Meltsner:

Well I don’t think it’s a big point, but I do think it reflects on her certainty.

Hugo L. Black:

What do you think, you say?

Michael Meltsner:

I think she perhaps was uncertain or confused at the trial, but if she was a person who could have been upset and confused easily, that reflects on her reliability —

William J. Brennan, Jr.:

Don’t you really think what she –

Michael Meltsner:

— as identification witness.

William J. Brennan, Jr.:

— what she was saying was before that night, “If had ever been in my house I really don’t recall it,” was that what she was saying?

I don’t why you press that at all really.

Michael Meltsner:

Well I’ll leave it and get on to the trial where her testimony was totally uncorroborated.

The state did offer the testimony of four police officers on direct examination that Mrs. Beamer had identified Biggers at the police station, although the fact of this identification had not been challenged and the 12-year-old daughter was unable to identify him.

The state claims in its brief that Mrs. Beamer identified Biggers in the courtroom.

We dispute this because there’s a standard method for identifying a defendant in the courtroom, picking him out and it wasn’t used in this case.

A final occurrence at trial —

Potter Stewart:

Is — Biggers’ counsel objected, on page 19, asking her to identify him again, said he’s already done it.

Is there any doubt in your mind today?

Mr. Williams who I guess was his counsel said, “He asked her that before a judge, we’re going to object to it?

The court says, “Alright is there any doubt in your mind?”

Mrs. – the victim said, “No, there is no doubt,” page 19.

Michael Meltsner:

Well I think he was objecting to the repetitious nature of that.

Earl Warren:

Repetition in the sense of what?

Michael Meltsner:

Of her –

Earl Warren:

Identification other than courtroom?

Michael Meltsner:

Oh, “Is there any doubt in your mind?”

Excuse me I misunderstood the question.

I think they are again referring to the pre-trial identification.

Identification in the courtroom is a question of locating a body among other bodies, not the question of saying the defendant’s name.

One can talk about a person without knowing exactly who he is.

I think there’s an important reason why this shouldn’t be inferred from the record, not that it’s again particularly to this case, because the burden for a testimony was of the pre-trial identification.

It’s important that a witness has to commit him or herself because in that way they’re responsible and any doubts they have are expressed in that way.

Potter Stewart:

About page 18 she compares the way he looked at the time of the rape and the way he looked in the courtroom, said his hair was a little longer.

Michael Meltsner:

As I read that it’s a comparison between the way he looked in the courtroom and the way he looked at the pre-trial identification.

Potter Stewart:

Now what it says is that, yes the hair, “a little longer than it is now,” and “now” is in the courtroom, that’s the bottom of page 18.

Michael Meltsner:

The question is whose hair?

There is standard method for identifying someone in the courtroom, it just wasn’t used here, but again I don’t think that’s particularly important.

Earl Warren:

Well, that’s what – that’s the import of that question, whether his hair was a little longer at the trial, was it the time of the crime or whether it was a little longer at the time of the trial than it was at the time of the pretrial?

Michael Meltsner:

As I read it, it’s a comparison between the time of the trial and the time of the pre-trial identification.

Michael Meltsner:

Nothing in her testimony goes back the seven months or nine or ten months at this point to the crime, when she’s identifying.

A final occurrence at the trial should be mentioned.

At the time of Biggers’ arrest and identification highly prejudicial newspaper accounts appeared based on police statements to the press.

Members of the trial jury had seen these stories and a photograph.

The state at the beginning of trial asked Mrs. Beamer if she has identified Biggers before or after these newspaper stories appeared, thus making the stories an issue at the trial.

It’s our position that this case is controlled by the Court’s decision in Stovall, where a show up or exhibiting a defendant alone was permitted only because there was no other way to have any identification proceeding.

But in this case a line up was imminently practical. Petitioner was in custody and continuously available.

Mrs. Beamer was available.

There was no shortage of persons to hold the line up, Biggers was taken from a juvenile detention facility to a police headquarters in a large city, in the daytime, a city in which there are approximately 75,000 Negroes and if some short delay was required not shown by the record, it would not have been prejudicial because the crime had taken place seven months earlier.

The dangers of the show up procedure are well known.

They were mentioned in the court’s opinions last term, presenting a man alone says there is reason to believe he is guilty.

This is the very question which the identification is supposed to resolve.

It also magnifies any similarities between the defendant and the criminal because there is no opportunity for comparison and it affords no test of recollection.

Now these dangers worked a particularly harsh result here, because of a number of circumstances.

Mrs. Beamer’s initial opportunity to observe had been slight.

The crime took place in a very short period of time.

She never saw the rapist in direct light.

Indeed the state concedes in one of its briefs that it was a limited opportunity, and she was understandably frightened and in fear of her life.

Again the state concedes she was emotionally upset.

Secondly, the gap between the crime and identification was great and her memory must have faded.

And thirdly, she relied on her memory of her voice.

She didn’t identify him until after he spoke. Memory of a voice is a particularly abstract and unreliable factor on which to base an identification.

Earl Warren:

Is there anything in the record to show what her powers of observation were, what her intelligence was, or what her education was, or anything of that kind, that wasn’t questioned at all in the trial or was it?

Michael Meltsner:

No, no.

Earl Warren:

It was not.

Abe Fortas:

Well, wasn’t she a licensed practical nurse?

Michael Meltsner:

That’s correct.

The lesser opportunity to observe, the longer the gap between identification and the crime, the more suggestible she was by means of a procedure which magnified the similarities between the petitioner and the criminal and told her that the police had evidence against him.

Now into this situation, the police not only failed to use available procedures to protect her liability but they affirmatively corrupted the process of recollection by calling Biggers as suspect and making him say, “shut up or I’ll kill you.”

The more dramatically a person is tied to the crime, the more likely an identification will be the product of suggestion that the defendant is the criminal rather than any free recollection of the crime.

Michael Meltsner:

And nothing which took place at trial increased the reliability of this identification, it was corroborated.

Abe Fortas:

I beg your pardon.

Suppose there had been a line up, a proper line up in all respects and that every person in the lineup had said these words, “shut up or I’ll kill you?”

Michael Meltsner:

Totally different situation, it then would have created a spur to recollection, but here it was just one person doing it and so the actor in the role, as so often happens in life, were confused.

Abe Fortas:

So you make no point about the requiring the petitioner to say these words apart from the fact that the confrontation was a single and rather than in a lineup?

Michael Meltsner:

Well we do have a Fifth Amendment claim about this Your Honor, which the stated at length in the brief.

Abe Fortas:

I understand it, but I’m asking what your position is?

In your last statement I thought you said, was to the effect that if these words had been stated in a line-up, then you wouldn’t have a Fifth Amendment point?

Michael Meltsner:

No, my point is that assuming that there is no Fifth Amendment contention left after the Wade case as to speech or the line-up, then the suggestibility of the use of these inflammatory words would not have been directed at this young man if a line up had been held.

Abe Fortas:

So you are saying that it was a coupling only and only the coupling of a single confrontation with the utterance of the words of the assailant that create the Fifth Amendment problem here?

Michael Meltsner:

It created a Fifth and Fourteenth Amendment problem here.

Hugo L. Black:

You mean, you’re accepting Wade?

Michael Meltsner:

Well we see it —

Hugo L. Black:

Or you’re just accepting it in order to make this argument?

You challenge the holding in Wade that it does not violate the self incrimination of the —

Michael Meltsner:

We don’t think we –

Hugo L. Black:

— to tell a person to make a statement that the witness to see if he is the guilty man?

Michael Meltsner:

We don’t think we have to because this case involves testimony about that speech.

Hugo L. Black:

Are you waiving it or –

Michael Meltsner:

No absolutely not, absolutely not.

We think the Court should reconsider it and base its decision on the volitional cooperation involved in compelled speech, but we don’t think that need be reached.

Earl Warren:

Mr. Meltsner is there anything in the record to indicate what weight Mrs. Beamer put on her first sight of this man and what weight she put on his voice in the determining that he was the assailant?

Michael Meltsner:

The first thing she mentioned when she, when she is asked why she identified him, it’s her — it is his voice.

So I would assume that it was a heavy fact there, also she did not identify him when she saw him immediately she waited until he spoke.

Earl Warren:

That’s all there is in this record?

Michael Meltsner:

Another occurrence at trial, which should be mentioned is the states pointing of five fingers at the petitioner rather than one.

They just didn’t rest on Mrs. Beamer’s identification which we assert is tainted, but they had four police officers testify as to it, and as I mentioned earlier, they injected this newspaper story into the record, a factor which must have robbed the jury’s capacity to objectively appraise this identification and all the suggestion here was unnecessary.

A line up could have been held, the officer who called Biggers a suspect had been on the force seventeen-and-a-half years, he should have known better.

He didn’t have to speak, “shut up or I’ll kill you.”

He could have been made to speak innocent words, words that didn’t tie into the crime in the same way, his parents and counsel could have been present and the bolstering of this tainted identification and injection of the newspaper to the case were totally unnecessary trial tactics.

Thomas E. Fox:

Mr. Chief Justice, Associate Justices, may it please the Court.

Earl Warren:

Mr. Fox?

Thomas E. Fox:

I don’t think that I am too much in disagreement with opposing counsel with respect to the facts as shown by record or with respect to what the law is.

I think the difference is that inferences to be drawn from, I think I’d draw different inferences from these, from the record from what opposing counsel did and it maybe that I have looked at the law a little bit different in this respect.

In Stovall as I understand it the question is and I think that’s question to be determined, the only question to be determined here is whether or not the identification proceedings were such as are – were so unfair as to amount to the denial of due process.

Now what amounts to a denial of due process I think in any given case depends upon the circumstances.

Mr. Justice Frankfurter in one of his cases, it’s a Joint Anti-Fascist Refugee Committee versus McGrath, reported in 341 U.S. 123; he said, “you weigh the hurt against the good that’s to be done.”

In other cases, I’ll cite another case –-

Hugo L. Black:

I didn’t understand what you said?

Thomas E. Fox:

Mr. Justice Frankfurter in that case said in determining what amounted to due process was a weighing of the good — of the hurt against the good to be done.

That’s not the whole excerpt that I have in my brief, but I think that summarizes it pretty well.

Well in these circumstances are in Stovall case, the good to be done in that case was that here was the victim, the only person that could identify the defendant, she was not expected to delay.

I don’t what her condition of mind was at that particular time but it seemingly might not have been or its possibility, I’ll say you that, that it was not as good as if she had not been expected or if she had been expected to delay them.

But under those circumstances the suspect or the accused was carried to the hospital by himself and this Court held in that case that because of the circumstances it was imperative that the identification be made under those circumstances that was not — then amount to a denial of due process.

In this case the circumstances were different but I think in line with the same rule of law, Mrs. Beamer had over the time and I don’t know how often it occurred or how regular, but she had identified to the State by opposing counsel she had looked at, she had looked at 30 or 40 photographs, none of them were the defendant, she said and I have an explanation for that.

That is he didn’t have it, he had no police record, he had no, the police had no photographs of him.

She looked at several people during that time, didn’t say how often or how regular but during — from January 22 to August 17, she looked at several people none of them were the man that she — the man that attacked her or she didn’t identify any as the man who attacked her.

I think the reason for that is that this was the first time he had been taken into custody by the police.

That I think shows the reliability of her testimony but the point that I was going to make, over this period of time I think the police had decided whether rightly or wrongly is impossibility to have a lineup and counsel opponent for ever person that Ms. Beamer might, that might be a suspect.

I think they — I believe from one inference that could be drawn from the record is that that they really had given up on finding the person who raped Ms. Beamer.

Since that is a case and since this investigation was continuing over long period of time I think the totality of the circumstances made it impossible, and seemed to me like not warranted in going through all the procedure that you’d go through in identifying a hot prospect immediately after the incident occurred.

I think it had become obvious to the police by this time that Ms. Beamer if she was emotionally upset, and I suggest in my brief that she was, I don’t know that there’s anything that indicates that she was upset, she was frightened by the time, but over a period of seven months.

She had looked at several pictures, she had seen several, she had looked at 30 or 40 pictures, she had seen several people.

It became obvious that she wouldn’t quit to identify people who are not guilty.

She said that she – of the photographs she saw one photograph that the person or – that had features like the defendant.

So it appears that she was being very —

William J. Brennan, Jr.:

Do you mean like the assailant?

Thomas E. Fox:

Like the assailant, yes sir.

William J. Brennan, Jr.:

But what puzzles me about this is she was never able to say anything about the features of any assailant?

Thomas E. Fox:

Yes, well I think that the record indicates that she did.

William J. Brennan, Jr.:

That she did?

Thomas E. Fox:

That she did say something about it and I’m not speaking — what the printed record said as stated by my opposing counsel but I think from the inferences, we can say that she did say something about him.

The police, one of them testified that she did give a description, nothing was asked about what she said in that description.

But she said as pointed out by Mr. Justice Stewart a while ago that his hair was longer at the time she was assaulted than it was at the identification or during the trial, now I think —

Earl Warren:

That’s clear in the record?

Thomas E. Fox:

Yes sir, that’s I think no question about it, that’s clear in the record.

That is saying her identification prior to the lineup or identification given at trial prior to lineup, she’s saying, “he looks like he does now except his hair was shorter I believe it was at time the incident occurred.”

She also said this, she said that, “His shirt was open when he got on top of me I could see that he had — I could tell or he had a big flabby breast and that he had a fat abdomen.”

Now, nobody disputed that, this was seven months prior to the time of the trial if the defendant didn’t meet that description at that time, he would, he had been given notice or she had testified that it was up to him to refute that kind of evidence.

So I think she did yield considerable evidence about what he looked like at the time of the trial.

She also said his voice, that she had some teenage boys and that his voice sounded considerably like those boys.

Now, here is a point I want to make.

After she saw the defendant and I say in my brief that circumstance were limited, they’re always limited to some extent, in this advancement, she said, she has never seen him before the attack, she didn’t see him between the time of attack, then the arrest, and the arrest until she got down to police headquarters.

But she said there was light only in the hall, he threw her down in the hallway of her home I believe.

She said that she looked up into his face, she saw him, she saw him in the home too.

It’s not clear just how much she saw him.

It looks like the daughter might have had — does not, have got an opportunity to see him as Ms. Beamer, the daughter said she couldn’t identify him but I won’t say — daughter did relate some circumstances about his appearance that corroborated what her mother had said about.

But after she saw him at the police headquarters and incidentally one of the policemen said, there were five policemen present, the defendant said in the room where he was identified there were two policemen Ms. Beamer and another woman.

Now that’s I think an important point.

It’s argued that with five policemen present that that of itself suggested maybe Ms. Beamer wouldn’t, didn’t feel to free speak up.

Well, I think what the policemen say, and there were five policemen around the headquarters, but the defendant’s testimony is there were two policemen in the room where the identification took place, Ms. Beamer and another woman.

Byron R. White:

But how many have testified this to her identification at the trial?

Thomas E. Fox:

How many?

Byron R. White:

Policemen?

Thomas E. Fox:

If the Court please, I can’t answer it.

There’s one police officer that really testified to it and I think that maybe that might have been —

Byron R. White:

Is that all?

Thomas E. Fox:

As far as I remember he —

William J. Brennan, Jr.:

I thought we were told that four police officers testified to what happened at the identification?

Thomas E. Fox:

If the Court please, I really don’t know.

Thomas E. Fox:

I can’t — that was question I didn’t anticipate.

Byron R. White:

Isn’t that in the record?

I suppose we have the full trial record.

Thomas E. Fox:

Yes sir, we got the full trial record and I —

Byron R. White:

Well, that’s alright.

Thomas E. Fox:

And I think I can find out.

One policeman testified that I think at length about what took place.

Now, there were some others that maybe had something to say but I’m just, there’s officer Capet that really related to the circumstance it took place, the others didn’t, if they testified and I think they did, I think that was a mistake, it wasn’t fully as officer Capet testified.

Now after she saw the defendant, she still didn’t say, “This is him.”

She said, “let’s hear him talk.”

After he said these words that her assailant said to her, she said that, “This is the man.”

Now, one of the reasons I think back in Wade and Gilbert is that in that, the type of lineup that’s talked about there the defendant – he’s in a – so situated that he can’t tell what goes on.

He don’t know what the police do and what the suggestive gestures are made, or what is said, or anything of that sort.

That weren’t true in this case.

This defendant was in the room.

He could see who was taken part in his identification, and what was done.

What I’m saying is that under these circumstances, it is possible to reconstruct what took place because the defendant was there present and saw it.

He could have been informed his counsel as to what took place and counsel wouldn’t have – had cross-examine in the dark, as suggested in some of the other — in Gilbert or Wade I forgot, maybe suggested in both of them, that is not —

Abe Fortas:

Do you think this procedure was preferable to a lineup then?

Do you think a 16-year old boy was given an advantage by being taken alone of the doorway of this room and then he could with the wisdom that we all know as characteristic of 16-year old boys that wisdom and self possession, observe what was going on and later give his counsel an account of it?

Thomas E. Fox:

No sir, I think he had been, it would have been more protective if he had been placed in lineup at counsel parade.

Abe Fortas:

But why didn’t they put him in lineup?

Thomas E. Fox:

Sorry.

Abe Fortas:

Is there any reason in the record here why they didn’t put him in line?

Thomas E. Fox:

No sir, I don’t think so, but I think the inference is that she had been down to the — Ms. Beamer had been down police headquarters so many times, she had looked at so many people.

I think that the police by that time surely decided she’s going to be cautious since she has identifying anybody until real person comes along and I think it, I think it would have involved to many lineups and too much red tape if the Court pleased to kept on doing this every time.

Abe Fortas:

Does this record show that she was confronted by anybody else, any other suspect?

Thomas E. Fox:

This record shows that she was asked to identify several different people as —

Abe Fortas:

Does it show that she was confronted by several different people or show — or does it — or may have not been that she was shown that pictures?

Thomas E. Fox:

If the Court please, I don’t — I’m not sure I understand you but she was shown 30, 40 different pictures to identify.

Abe Fortas:

No, and I’m asking you whether she was shown other living people —

Thomas E. Fox:

Yes sir.

Abe Fortas:

— other than this 16 year old boy?

Thomas E. Fox:

Yes, the record says several, the record says several, it doesn’t say how many, or at what periods of time, or the regularity, or anything.

So I think that perhaps the inference to be drawn from the record is that every time, the policeman found somebody that had raped somebody else they’d call Ms. Beamer down there to see, “Well is this the one that raped you and she–”

Abe Fortas:

Isn’t the lineup customarily used in Nashville?

Thomas E. Fox:

I would think so if the Court please, but I don’t know the record doesn’t indicate whether it is or not, I would think so.

I think the reading part in this case as I said before that the inference, that can be drawn from record was that was happening so often and no result that they — it just got to be a matter of routine and made the option, did get a little careless about that thing.

Byron R. White:

Mr. Fox in this connection I see on page, maybe you can help me out, on page 24, 25 of the record this is on cross-examination —

Thomas E. Fox:

Yes.

Byron R. White:

— of Mrs. Beamer.

The attorney says and that was the second time you were allowed to see him.

She says, “that is correct,” and a little later she says, “that was not the first time I had been down to look at the suspect.”

Thomas E. Fox:

Yes, sir.

I don’t think she meant by that this particular suspect I think that was not the first time that she had been down there.

Byron R. White:

Well, I know but this one is, this one is a, I can’t find any antecedents to this at all —

Thomas E. Fox:

Yes, well.

Byron R. White:

— and that was the second time you were allowed to see him.

Thomas E. Fox:

Yes sir, well the record show — now this is the first time he had been to police headquarters.

Byron R. White:

This is the first time she had ever —

Thomas E. Fox:

This is the first time she–

Byron R. White:

This is the first time she had been asked.

Thomas E. Fox:

Yes sir, yes and I think her testimony is a little confusing, maybe she didn’t understand the question or there’s good bit, this was a pretty heated tried lawsuit and there’s lots of controversy, and I don’t think she understood.

But this was the first time he had been in police headquarters and I may have added that they didn’t have his picture, but I just think the inference to be drawn is if he hadn’t been there, if they haven’t arrested him, he had no police record, they didn’t have any pictures to show.

I think that attempt to show that she was careful and that she had time to cool off.

I know what Mr. Walsh (ph) treat his own eyewitness identification, he says the length of time is the matter to be considered, but in this case, I think that that was favorable to the state’s position because this lady had taken her time, she had cooled off and had made it evident that she wasn’t desperate to identify anybody.

She’ll just wait until the right man came along.

Now her daughter’s testimony, her daughter couldn’t identify the assailant, but her daughter gave this same description of him.

She says that he had long hair — she had — that he was large, that he was a member of the Negro race.

One other identifying feature that her mother had given, I have forgotten exactly what it is, I have got the citation here I believe on page 83.

Thomas E. Fox:

She even said I don’t know if this is material, but the daughter even said that the defendant had on a short sleeve shirt, well isn’t her mother testified that?

That may not be material, but it certainly corroborates to some extent about what her mother had to say about him.

Now the – as I said before, I know it would have been some protection if counsel had been present, but the purpose of having counsel there is have to reconstruct what happened, the arguments made because this is a boy and he wouldn’t know how to protect himself and things of that sort.

I don’t really think that enters into this question because certainly under Wade and Gilbert, there’s never been a doubt about until now.

A defendant can be made to testify I mean make the statement for the purpose of – knowing what his – how his voice sound, but I don’t know anything that counsel could have done if it had been there except to reconstruct circumstances and it is not shown that the defendant was handicapped in any way.

He was 16-year old boy, but I don’t know that means he couldn’t have been as observant as any, as an adult all he had to do was, he was panicked and could recite what happened.

So we think that that is not really sufficient to say that it amounts to denial of due process in this case because the counsel weren’t apprised.

If the Court please I believe that just about finishes my presentation.

Earl Warren:

Mr. Fox may I ask if he was arrested for another rape, was he is not?

Thomas E. Fox:

Yes, yes.

Earl Warren:

Whatever happened to that case?

Thomas E. Fox:

Court please, the record doesn’t show, and some argument made at one time about whether or not he was got propelled over from the juvenile court over to the criminal court, but that’s not no longer in the case so far as I understand and–

Earl Warren:

Is he charged, is a he charged now with that other rape?

Thomas E. Fox:

I think Your Honor please, I know from read or at least I read in the newspaper that there was other charges of this type pending against him.

I don’t know that, but I think I read that in the paper and I think that’s a certainty.

Earl Warren:

Do you know whether they were dismissed —

Thomas E. Fox:

No sir, no sir I–

Earl Warren:

— Or the charge is still pending —

Thomas E. Fox:

I do not know.

I don’t have any knowledge of any of the circumstances or how many other cases were charged against him other than one for that particular rape.

Earl Warren:

Is there anything in this record about that case at all?

Thomas E. Fox:

Not very much, it’s a little–

Earl Warren:

What is it?

Thomas E. Fox:

Alright, I don’t think that — the trial judge was trying desperately to keep out any information about the other rapes.

On cross-examination, one of the officers, officer Capet was asked, “Well, when did you first see the defendant?”

He said, over at a particular place and of course that was evident that it was where he was arrested in the other case and that’s as far I know that’s about as much as ever got into it.

It’s argued by opposing counsel that is enough to indicate the jury there was another case pending against him and they make that argument to sum it and that contains its own doing cross-examination, but that’s about the extent of it.

Earl Warren:

Well, that would probably have some effect on the jury, wouldn’t it?

Thomas E. Fox:

Yes if it got —

Earl Warren:

If he was arrested for another rape before, he was arrested here?

Thomas E. Fox:

Yes sir, but this was defendant’s counsel bringing that out, this one mistake.

Defendant’s counsel was asking these questions to bring that out in itself.

The trial judge was trying his best to keep it out and the district attorney, the prosecuting attorney made the statement that’s in the record that he had cautioned the witness.

I don’t know, this must not been for the jury, but he had cautioned the witness not to mention the other offense.

So state, the prosecution, and the court had made some effort to keep this out, about the other offenses.

Earl Warren:

But you have no information as to whether that was a provable case or whether it’s still considered–

Thomas E. Fox:

No sir, I don’t.

Earl Warren:

— a wide case by the state or not?

Thomas E. Fox:

No sir I can’t be certain on this record.

Earl Warren:

Is that a charge on his record now?

Thomas E. Fox:

No sir, it ain’t dealt in this record and it is still a charge and whether it still a charge against him or not and I don’t know.

I really don’t know, if the Court please, the opposing counsel may have some information to that.

Earl Warren:

Was there any evidence in this case at all other than the identification of Mrs. Beamer?

Thomas E. Fox:

No sir, no, I don’t think so.

I think it depends upon her identification.

Let me say this on his examination he testified and his mother testified to some circumstances that I think I don’t know what the inference be drawn from it would be, but I certainly think he heard him before the jury.

Because he was 16 year old and his mother said that when she went in and she called back — in one place I think she said about every hour see if he is still at home.

He testified to those circumstances, he didn’t go anywhere, he never got away from home, and then it develops, and this came from one of the defense witnesses that when his mother is away she had somebody watching him, to see that he did stay at home.

I think that certainly hurt him for the jury and I don’t know what inference could be drawn from it, except he was a peculiar sort of a child, that he was a sort of person that his mother had somebody watching.

I think it certainly she would have been afraid if a 16 year old boy would do something to hurt himself that it — to like a jury could probably infer to got was to keep him from getting into trouble somewhere and he was the most peculiar and a lone type boy, that’s part the defense proof and not our proof.

I don’t know that’s material for this court but certainly may have difference with the jury I would say.

Earl Warren:

Very well.

Mr. Meltsner.

Michael Meltsner:

Just a few points may it please the Court.

First I must object to the characterization of him as a peculiar boy by these defense witnesses.

On a contrary they testified to his good character, reliability and reputation.

I believe what they said was that he was very concerned about his mother.

He and his mother seem to look after each other and this was a broken home.

The stepfather had left and he is living somewhere else.

I don’t believe that the testimony was that she had people looking after him unusually.

Michael Meltsner:

These were just neighbors who lived in the vicinity.

Now in answer to Justice White’s question earlier four police officers did testify to the identification.

Four of the five that were present and the fifth I believe was sick and that’s the only reason he didn’t testify.

Byron R. White:

What — is your constitutional point that this is a due process question?

It really is amounting to say that this is a — there just isn’t any evidence to support this verdict?

Michael Meltsner:

That is one way I think it could be looked at.

Byron R. White:

Well how else do you look at it?

If this evidence was worth hearing, considering, why I suppose you wouldn’t have much of a case.

You’re just saying it was so unreliable as to be — as to be an admissible?

Michael Meltsner:

That’s correct.

Byron R. White:

Or it’s so unreliable that it can’t support a conviction?

Michael Meltsner:

Correct.

Byron R. White:

Slowly built case?

Michael Meltsner:

I think that’s one way of looking at it, but I think you can also see it through cases like — well first of all Stovall is the primary authority, but also cases like Turner versus Louisiana and also cases like Napue.

There is not a very great difference between leading one to testify falsely and leading one to testify on the basis of a mistaken identification and this is — and the identification was the trial in this case.

The trial was in appeal for the identification and when the police officers came in and kept harping on it, the authority of the police officers must have made it more and more difficult for the jurors to accurately appraise the identification.

Now I just —

Earl Warren:

What did all these five officers – or as many of them have testify to this identification of Mrs. —

Michael Meltsner:

Were you present in the police station?

Did Mrs. Beamer identified this young man, yes she did, et cetera.

Earl Warren:

It was all of them, all of them to —

Michael Meltsner:

Correct and objection was made that this was not evidentiary.

It was just harping and those objections were overruled.

To the extent the state seems to use the gap between the crime and the identification to explain a way that show up procedure.

I think it clearly must be the state’s burden to show factors, circumstances which occurred during that period to enhance reliability.

This record is just not enlightening on that point.

The state never, never carried that burden.

Clearly the petitioner can’t carry that burden because he doesn’t know what the police has done during that period.

It seems to me that the state’s primary defense, as raised here, it maybe good in certain other cases, but it’s not good on this record because the record just doesn’t establish the circumstances of these earlier identifications.

There may have been lineups held.

Michael Meltsner:

The photographs may have been showing in July, they may have been shown in February. One doesn’t know and it’s the state’s burden to explain it in a way. Thank you.

Earl Warren:

To what extent was the original arrest for a rape mentioned in this case — I don’t mean his arrest, I mean the arrest for another rape?

Michael Meltsner:

This is all outside the record.

My understanding is he was not arrested for rape, he was arrested on a loitering charge and he was held on his loitering charge while the police showed him to various people including the woman who was assaulted, not raped, assaulted on the 16th of August.

Earl Warren:

Was there some article in the newspaper you say about that?

Michael Meltsner:

Yes and —

Earl Warren:

That was prior to his trial?

Michael Meltsner:

That is how the other case was injected by the state before the jury.

The newspaper stories which I have referred to described the arrest, they say he confessed to certain things, they say that he was identified by certain women.

The state began its presentation to the jury by asking Mrs. Beamer if she had identified him before or after these newspaper stories had appeared and many of the jurors had read these stories.

Earl Warren:

They said so on the voir dire?

Michael Meltsner:

That’s correct.

It took three of four days to select the jury in this case for that reason.

Potter Stewart:

And you don’t mean the jurors had, you mean the venire, the members of the —

Michael Meltsner:

The members of the sitting panel.

According to a statement of counsel in the trial court, jurors who had been accepted for the trial had known about these stories.

Potter Stewart:

Jurors as members of the jury?

Michael Meltsner:

That’s the inference from that statement, yes.

They were accepted despite the fact they had seen these stories.

Potter Stewart:

Or is that correct?

Well we can try —

Michael Meltsner:

It’s — I’m sorry Your Honor it is a point made by counsel when he is objecting to this other case being mentioned.

Hugo L. Black:

Have you raised any such points in your petition for certiorari?

Michael Meltsner:

Concerning?

Hugo L. Black:

Presented —

Michael Meltsner:

Not exclusively.

We raised —

Hugo L. Black:

If you raised it all, I’ve just read it and I don’t find any.

Michael Meltsner:

Well, I believe in the petition we mentioned —

Hugo L. Black:

Is that the question presented?

Michael Meltsner:

No, no, not the newspaper itself, it’s just another factor in the case.

Earl Warren:

Do you know what’s become of that other charge, that original charge?

Michael Meltsner:

My best understanding is this, he has never been indicted for the assault that took place on August 16, but he has been indicted for two other charges in Davidson County and these charges have not come to trial, but the original one he has not been indicted.

Earl Warren:

Those were rape charges?

Michael Meltsner:

Yes.

Earl Warren:

Very well.