Biggers factors in Virginia

2025Smallwood v. Commonwealth, 14 Va. App. 527, 530 (1992); see Jones v. Commonwealth, No. 0426-19-1, slip op. at 7 n.5 (Va. Ct. App. Apr. 7, 2020) (applying the Biggers factors in evaluating a sufficiency challenge because of the inter-panel accord doctrine); see also Clark v. Commonwealth, No. 1694-22-1, slip op. at 6-7 (Va. Ct. App. Jan. 23, 2024) (collecting cases).

2025Smallwood v. Commonwealth, 14 Va. App. 527, 530 (1992); see Jones v. Commonwealth, No. 0426-19-1, slip op. at 7 n.5 (Va. Ct. App. Apr. 7, 2020) (applying the Biggers factors in evaluating a sufficiency challenge because of the inter-panel accord doctrine); see also Clark v. Commonwealth, No. 1694-22-1, slip op. at 6-7 (Va. Ct. App. Jan. 23, 2024) (collecting cases).

2022“Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). 10 This dissent includes a thorough analysis of the application of the five “Biggers factors” for assessing the reliability of the victim’s identification of Mr. Sample, notwithstanding the majority’s contention that the dissent argues that these factors “need not really be analyzed.” - 22 - Applying the Biggers factors to the facts of this case, this Court should defer to the trial court’s factual findings if they are supported by the evidence

2022“Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). 10 This dissent includes a thorough analysis of the application of the five “Biggers factors” for assessing the reliability of the victim’s identification of Mr. Sample, notwithstanding the majority’s contention that the dissent argues that these factors “need not really be analyzed.” - 22 - Applying the Biggers factors to the facts of this case, this Court should defer to the trial court’s factual findings if they are supported by the evidence

2024E.g., Cuffee, 61 Va. App. at 364 (“The factors set forth in [Biggers] are used to determine ‘whether the identification evidence is sufficient, standing alone or in combination -5- with other evidence, to prove beyond a reasonable doubt’ the identity of the perpetrator.” (quoting Brown, 37 Va. App. at 522 )); Smallwood v. Commonwealth, 14 Va. App. 527, 530 (1992) (“In determining whether eyewitness identification is reliable, our Supreme Court has adopted the factors set out in [Biggers] . . . .”).

2024E.g., Cuffee, 61 Va. App. at 364 (“The factors set forth in [Biggers] are used to determine ‘whether the identification evidence is sufficient, standing alone or in combination -5- with other evidence, to prove beyond a reasonable doubt’ the identity of the perpetrator.” (quoting Brown, 37 Va. App. at 522 )); Smallwood v. Commonwealth, 14 Va. App. 527, 530 (1992) (“In determining whether eyewitness identification is reliable, our Supreme Court has adopted the factors set out in [Biggers] . . . .”).

2020Id. (holding that the Biggers factors are relevant in determining “whether the identification evidence is sufficient standing alone or in combination with other evidence, to prove” the identity of the perpetrator (emphasis added)).

2020Id. (holding that the Biggers factors are relevant in determining “whether the identification evidence is sufficient standing alone or in combination with other evidence, to prove” the identity of the perpetrator (emphasis added)).

2022See Winston v. Commonwealth, 268 Va. 564, 593 (2004) (citing Neil v. Biggers, 409 U.S. 188, 198-99 (1972)); see also, e.g., United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (concluding due process requires a trial court to screen an initial in-court identification).

2022See Winston v. Commonwealth, 268 Va. 564, 593 (2004) (citing Neil v. Biggers, 409 U.S. 188, 198-99 (1972)); see also, e.g., United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (concluding due process requires a trial court to screen an initial in-court identification).

2025Under Sample’s framework—which only applied the Biggers factors to the identifications themselves and not the sufficiency of the evidence—our only task would be to “give[] deference to the trier of fact’s finding of witnesses’ credibility” and refrain from opining “upon the credibility of the witnesses where their evidence is not inherently incredible.” Sample, 303 Va. at 16 (quoting Gerald v. Commonwealth, 295 Va. 469, 486 (2018)).

2025Under Sample’s framework—which only applied the Biggers factors to the identifications themselves and not the sufficiency of the evidence—our only task would be to “give[] deference to the trier of fact’s finding of witnesses’ credibility” and refrain from opining “upon the credibility of the witnesses where their evidence is not inherently incredible.” Sample, 303 Va. at 16 (quoting Gerald v. Commonwealth, 295 Va. 469, 486 (2018)).

2022See Greene, 704 F.3d at 298 (applying the Biggers factors to an initial in-court identification post-Perry); United States v. Morgan, 248 F. Supp. 3d 208, 212 (D.D.C. 2017) (distinguishing Perry and finding that “[a]n in-court identification of defendant would be ‘arranged by law enforcement’ because the government . . . would be choosing to ask the witness for an identification at his trial”) (internal citation omitted); Lee v. Foster, 750 F.3d 687 (7th Cir. 2014) (citing Perry and then applying the Biggers factors to an in-court identification); Nolan, 83 P.3d at 224 (assuming the Biggers fa

2022See Greene, 704 F.3d at 298 (applying the Biggers factors to an initial in-court identification post-Perry); United States v. Morgan, 248 F. Supp. 3d 208, 212 (D.D.C. 2017) (distinguishing Perry and finding that “[a]n in-court identification of defendant would be ‘arranged by law enforcement’ because the government . . . would be choosing to ask the witness for an identification at his trial”) (internal citation omitted); Lee v. Foster, 750 F.3d 687 (7th Cir. 2014) (citing Perry and then applying the Biggers factors to an in-court identification); Nolan, 83 P.3d at 224 (assuming the Biggers fa

2022See Cofield v. Nuckles, 239 Va. 186, 194 (1990) (“A party can concede the facts but cannot concede the law.”). 12 As the parties agreed, the transcript of the victim’s testimony at the suppression hearing was admitted in evidence at trial in lieu of additional testimony by the victim. - 23 - gun . . . .” These factual findings are not supported by the evidence.

2022See Cofield v. Nuckles, 239 Va. 186, 194 (1990) (“A party can concede the facts but cannot concede the law.”). 12 As the parties agreed, the transcript of the victim’s testimony at the suppression hearing was admitted in evidence at trial in lieu of additional testimony by the victim. - 23 - gun . . . .” These factual findings are not supported by the evidence.

2022State v. Dickson, 141 A.3d 810, 828 (Conn. 2016); Commonwealth v. Crayton, 21 N.E.3d 157, 157 (Mass. 2014).

2022State v. Dickson, 141 A.3d 810, 828 (Conn. 2016); Commonwealth v. Crayton, 21 N.E.3d 157, 157 (Mass. 2014).

2022See Garner, 436 P.3d at 1121 ; Crayton, 21 N.E.3d at 157, 166 ; see also Doolin, 942 N.W.2d at 557-60 (Appel, J., dissenting).

2022See Greene, 704 F.3d at 298 (applying the Biggers factors to an initial in-court identification post-Perry); United States v. Morgan, 248 F. Supp. 3d 208, 212 (D.D.C. 2017) (distinguishing Perry and finding that “[a]n in-court identification of defendant would be ‘arranged by law enforcement’ because the government . . . would be choosing to ask the witness for an identification at his trial”) (internal citation omitted); Lee v. Foster, 750 F.3d 687 (7th Cir. 2014) (citing Perry and then applying the Biggers factors to an in-court identification); Nolan, 83 P.3d at 224 (assuming the Biggers fa

2022See Greene, 704 F.3d at 298 (applying the Biggers factors to an initial in-court identification post-Perry); United States v. Morgan, 248 F. Supp. 3d 208, 212 (D.D.C. 2017) (distinguishing Perry and finding that “[a]n in-court identification of defendant would be ‘arranged by law enforcement’ because the government . . . would be choosing to ask the witness for an identification at his trial”) (internal citation omitted); Lee v. Foster, 750 F.3d 687 (7th Cir. 2014) (citing Perry and then applying the Biggers factors to an in-court identification); Nolan, 83 P.3d at 224 (assuming the Biggers fa

2022See Winston v. Commonwealth, 268 Va. 564, 593 (2004) (citing Neil v. Biggers, 409 U.S. 188, 198-99 (1972)); see also, e.g., United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (concluding due process requires a trial court to screen an initial in-court identification).

2022See Winston v. Commonwealth, 268 Va. 564, 593 (2004) (citing Neil v. Biggers, 409 U.S. 188, 198-99 (1972)); see also, e.g., United States v. Greene, 704 F.3d 298, 307 (4th Cir. 2013) (concluding due process requires a trial court to screen an initial in-court identification).

2022State v. Dickson, 141 A.3d 810, 828 (Conn. 2016); Commonwealth v. Crayton, 21 N.E.3d 157, 157 (Mass. 2014).

2022State v. Dickson, 141 A.3d 810, 828 (Conn. 2016); Commonwealth v. Crayton, 21 N.E.3d 157, 157 (Mass. 2014).

2020See Charity v. Commonwealth, 24 Va. App. 258, 263 (1997) (holding that the victim’s identification of the defendant was not unreliable under the Biggers factors where the victim had observed the perpetrator for seventeen seconds and came within ten feet from him).

2020See Charity v. Commonwealth, 24 Va. App. 258, 263 (1997) (holding that the victim’s identification of the defendant was not unreliable under the Biggers factors where the victim had observed the perpetrator for seventeen seconds and came within ten feet from him).

2020Id.; see also Townes v. Commonwealth, 234 Va. 307, 331 (1987) (adopting the Biggers factors “for determining whether a particular identification is reliable”).

2020Id.; see also Townes v. Commonwealth, 234 Va. 307, 331 (1987) (adopting the Biggers factors “for determining whether a particular identification is reliable”).

2020See, e.g., Hopkins v. Commonwealth, 20 Va. App. 242, 252 (1994); Hill v. Commonwealth, 2 Va. App. 683, 692-93 (1986).

2020See, e.g., Hopkins v. Commonwealth, 20 Va. App. 242, 252 (1994); Hill v. Commonwealth, 2 Va. App. 683, 692-93 (1986).

2020See, e.g., Hopkins v. Commonwealth, 20 Va. App. 242, 252 (1994); Hill v. Commonwealth, 2 Va. App. 683, 692-93 (1986).

2020See, e.g., Hopkins v. Commonwealth, 20 Va. App. 242, 252 (1994); Hill v. Commonwealth, 2 Va. App. 683, 692-93 (1986).

2020Thus, we apply the Biggers factors in evaluating appellant’s sufficiency challenge. -8- weight, hair length and color, nationality, and skin tone.” Phan v. Commonwealth, 258 Va. 506, 511 (1999); see also Hammer v. Commonwealth, 207 Va. 165, 168 (1966) (holding that a victim’s identification of a masked assailant “by his voice, his eyes and his build” was reliable).

2020Thus, we apply the Biggers factors in evaluating appellant’s sufficiency challenge. -8- weight, hair length and color, nationality, and skin tone.” Phan v. Commonwealth, 258 Va. 506, 511 (1999); see also Hammer v. Commonwealth, 207 Va. 165, 168 (1966) (holding that a victim’s identification of a masked assailant “by his voice, his eyes and his build” was reliable).

2020Thus, we apply the Biggers factors in evaluating appellant’s sufficiency challenge. -8- weight, hair length and color, nationality, and skin tone.” Phan v. Commonwealth, 258 Va. 506, 511 (1999); see also Hammer v. Commonwealth, 207 Va. 165, 168 (1966) (holding that a victim’s identification of a masked assailant “by his voice, his eyes and his build” was reliable).

2020Thus, we apply the Biggers factors in evaluating appellant’s sufficiency challenge. -8- weight, hair length and color, nationality, and skin tone.” Phan v. Commonwealth, 258 Va. 506, 511 (1999); see also Hammer v. Commonwealth, 207 Va. 165, 168 (1966) (holding that a victim’s identification of a masked assailant “by his voice, his eyes and his build” was reliable).

2016(Id. at 4-5.) In response to Williams’s Motion for Funds, the Commonwealth argues that the motion should be denied because “the proposed expert testimony would invade the province of the jury,” noting that “the [Virginia] Court of Appeals held that the trustworthiness of eyewitness observations ‘is not generally beyond the common knowledge and experience of the average juror.’” (Resp. to Mot. for Funds 1-2 (quoting Currie v. Commonwealth, 30 Va. App. 58, 64 , 515 S.E.2d 335, 338 (1999).) The Commonwealth also argues that “the Defendant has not offered the ‘particularized need which would be ad

2016(Id. at 4-5.) In response to Williams’s Motion for Funds, the Commonwealth argues that the motion should be denied because “the proposed expert testimony would invade the province of the jury,” noting that “the [Virginia] Court of Appeals held that the trustworthiness of eyewitness observations ‘is not generally beyond the common knowledge and experience of the average juror.’” (Resp. to Mot. for Funds 1-2 (quoting Currie v. Commonwealth, 30 Va. App. 58, 64 , 515 S.E.2d 335, 338 (1999).) The Commonwealth also argues that “the Defendant has not offered the ‘particularized need which would be ad

2016(Id. at 4-5.) In response to Williams’s Motion for Funds, the Commonwealth argues that the motion should be denied because “the proposed expert testimony would invade the province of the jury,” noting that “the [Virginia] Court of Appeals held that the trustworthiness of eyewitness observations ‘is not generally beyond the common knowledge and experience of the average juror.’” (Resp. to Mot. for Funds 1-2 (quoting Currie v. Commonwealth, 30 Va. App. 58, 64 , 515 S.E.2d 335, 338 (1999).) The Commonwealth also argues that “the Defendant has not offered the ‘particularized need which would be ad

2016(Id. at 4-5.) In response to Williams’s Motion for Funds, the Commonwealth argues that the motion should be denied because “the proposed expert testimony would invade the province of the jury,” noting that “the [Virginia] Court of Appeals held that the trustworthiness of eyewitness observations ‘is not generally beyond the common knowledge and experience of the average juror.’” (Resp. to Mot. for Funds 1-2 (quoting Currie v. Commonwealth, 30 Va. App. 58, 64 , 515 S.E.2d 335, 338 (1999).) The Commonwealth also argues that “the Defendant has not offered the ‘particularized need which would be ad

2007See Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988); Loserth v. State, 985 S.W.2d 536, 546 (Tex. Ct. App. 1998) (holding the lack of accuracy of a witness’ prior description the most significant of the Biggers factors). 7 When reviewing the trial judge’s determination of the admissibility of an out-of-court identification, these discrepancies should not be taken lightly or dismissed as a “weight of the evidence” issue to be determined by the jury.

2007See Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988); Loserth v. State, 985 S.W.2d 536, 546 (Tex. Ct. App. 1998) (holding the lack of accuracy of a witness’ prior description the most significant of the Biggers factors). 7 When reviewing the trial judge’s determination of the admissibility of an out-of-court identification, these discrepancies should not be taken lightly or dismissed as a “weight of the evidence” issue to be determined by the jury.

2007See Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988); Loserth v. State, 985 S.W.2d 536, 546 (Tex. Ct. App. 1998) (holding the lack of accuracy of a witness’ prior description the most significant of the Biggers factors). 7 When reviewing the trial judge’s determination of the admissibility of an out-of-court identification, these discrepancies should not be taken lightly or dismissed as a “weight of the evidence” issue to be determined by the jury.

2007See Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988); Loserth v. State, 985 S.W.2d 536, 546 (Tex. Ct. App. 1998) (holding the lack of accuracy of a witness’ prior description the most significant of the Biggers factors). 7 When reviewing the trial judge’s determination of the admissibility of an out-of-court identification, these discrepancies should not be taken lightly or dismissed as a “weight of the evidence” issue to be determined by the jury.

2007Cf. Satcher v. Commonwealth, 244 Va. 220, 249 , 421 S.E.2d 821, 838-39 (1992) (holding that in an in-court identification of the defendant by a victim, “the differences between her description and [defendant’s] actual appearance went to the weight, not the admissibility, of her identification evidence”).

2007Cf. Satcher v. Commonwealth, 244 Va. 220, 249 , 421 S.E.2d 821, 838-39 (1992) (holding that in an in-court identification of the defendant by a victim, “the differences between her description and [defendant’s] actual appearance went to the weight, not the admissibility, of her identification evidence”).

2001In Smallwood, the Biggers factors were applied to find unreliable a witness' equivocal identification of the accused at trial, when considered in the context of limited opportunity to view the offender at the time of the offense and inconsistent descriptions. - 6 - sufficient to constitute this element of the crime." Bright v. Commonwealth, 4 Va. App. 248, 252 , 356 S.E.2d 443, 445 (1987) (quoting Johnson v. Commonwealth, 221 Va. 872, 876 , 275 S.E.2d 592, 594-95 (1981)).

2001In Smallwood, the Biggers factors were applied to find unreliable a witness' equivocal identification of the accused at trial, when considered in the context of limited opportunity to view the offender at the time of the offense and inconsistent descriptions. - 6 - sufficient to constitute this element of the crime." Bright v. Commonwealth, 4 Va. App. 248, 252 , 356 S.E.2d 443, 445 (1987) (quoting Johnson v. Commonwealth, 221 Va. 872, 876 , 275 S.E.2d 592, 594-95 (1981)).

2001In Smallwood, the Biggers factors were applied to find unreliable a witness' equivocal identification of the accused at trial, when considered in the context of limited opportunity to view the offender at the time of the offense and inconsistent descriptions. - 6 - sufficient to constitute this element of the crime." Bright v. Commonwealth, 4 Va. App. 248, 252 , 356 S.E.2d 443, 445 (1987) (quoting Johnson v. Commonwealth, 221 Va. 872, 876 , 275 S.E.2d 592, 594-95 (1981)).

2001In Smallwood, the Biggers factors were applied to find unreliable a witness' equivocal identification of the accused at trial, when considered in the context of limited opportunity to view the offender at the time of the offense and inconsistent descriptions. - 6 - sufficient to constitute this element of the crime." Bright v. Commonwealth, 4 Va. App. 248, 252 , 356 S.E.2d 443, 445 (1987) (quoting Johnson v. Commonwealth, 221 Va. 872, 876 , 275 S.E.2d 592, 594-95 (1981)).