A warehouse owned by Saada and his son (Neil) flooded
because of a broken sprinkler. They were arrested under suspicion of
fraudulently breaking the sprinkler in order to collect the insurance
At trial, the Saada introduced the testimony of an
employee of the warehouse (Chewning), who claimed that another employee
(Yaccarino) had come running out of the warehouse shouting that Neil had
accidentally broken the sprinkler.
The Trial Judge allowed the testimony to be admitted as
an excited utterance (see FRE 803(2)).
Yaccarino was conveniently dead by the time of the trial.
The prosecution attempted to impeach Yaccarino by
introducing evidence that Yaccarino had been a judge who had been removed
for the bench for unethical conduct.
Saada objected on the grounds that you can't impeach the
credibility of a hearsay declarant with extrinsic evidence. They claimed
that FRE 806 provides for the impeachment of a hearsay declarant,
but limits that impeachment to any evidence that would be admissible for
impeachment purposes if the declarant had testified as a witness.
FRE 608(b) says that specific instances of the
conduct of a witness, for the purpose of attacking or supporting the
witness' character for truthfulness, other than conviction of crime, may
not be proved by extrinsic evidence.
The Trial Judge allowed the evidence of Yaccarino's
conduct to be admitted.
Saada and son were convicted of fraud. They appealed.
The Appellate Court found that the evidence had been
The Appellate Court found that extrinsic evidence
of a hearsay declarant's prior bad acts are not admissible for
impeachment purposes even when those declarant is unavailable to testify.
FRE 608(b) bans extrinsic evidence of prior bad
acts in the context of a hearsay declarant, even when the declarant is
unavailable to testify. The prosecution argued that FRE 806
modified this, but the Appellate Court disagreed.
FRE 608(b) only allows extrinsic evidence to be
admitted if a party can prove specific instances of conduct through
In this case, since Yaccarino was dead, there was no
way to cross-examine him.
The Appellate Court rejected the prosecution's argument
that FRE 806 allows a party against whom a hearsay statement is
admitted to call the declarant as a witness as if under
cross-examination. But in this case Yaccarino is dead, so they can't
cross-examine him. So instead, they should be allowed to introduce
extrinsic evidence to make up for the fact they can't cross-examine him.
Basically, the prosecution had argued that the only way
to show that Yaccarino was a liar was to put him on the stand and accuse
him of his bad acts, but he was dead and unable to testify. So his
excited utterance was essentially unimpeachable because no evidence
outside cross-examination is admissible for impeachment purposes.
The Appellate Court noted that there were other ways of
impeaching the deceased declarant, including:
Evidence of the declarant's (or the witness's) character
The witness may be questions as to the declarant's
misconduct if relevant to the witness' knowledge of the declarant's
character for truthfulness.
Evidence of relevant prior convictions may be
Evidence of prior inconsistent statement may be
The Appellate Court found this to be harmless error and
upheld the convictions.