United States v. Saada
212 F.3d 210 (2000)

  • 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 money.
  • 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 improperly admitted.
    • 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 cross-examination.
        • 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 for untruthfulness.
      • 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 introduced.
      • Evidence of prior inconsistent statement may be introduced.
    • The Appellate Court found this to be harmless error and upheld the convictions.