§ 35.04 Best Available Evidence

• Jurisdiction: United States

§ 35.04 Best Available Evidence

The residual exception should be used only if the statement is more probative on the point for which it is offered than any other evidence that is reasonably available. Consequently, if the declarant is available, resort to this exception may not be appropriate.²³ Nevertheless, a showing of unavailability is not required. Dallas County illustrates why unavailability may not be determinative. Even if the declarant (journalist) in that case had been available after all these years had passed, the newspaper account would in all likelihood be more reliable than the reporter's memory.

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Notes:

^[23] See Noble v. Alabama Dept. of Envtl. Mgmt., 872 F.2d 361, 366 (11th Cir. 1989) ("[I]t was not unreasonable to expect appellees to call the writers of the letters themselves to testify about the context of their statements as well as their qualifications to evaluate the competence of CET...