(dissenting):
I dissent. In my view Grochulski was denied a fair trial by the judge’s rulings, under state law, precluding introduction of evidence pertaining to Robert Baron’s confession that he committed the crime with which Grochulski was charged. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Welcome v. Vincent, 549 F.2d 853 (2d Cir.), cert. denied, Fogg v. Welcome, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977).
In Chambers the Supreme Court held that the combined effect of state evidentiary rules that prohibited the defendant from impeaching his own witness (the “voucher” rule)1 and that excluded hearsay statements critical to the defense, which bore substantial assurances of trustworthiness, deprived the defendant in that case of a fair trial. 410 U.S. at 298-303, 93 S.Ct. at 1047-1050. This court extended Chambers in Welcome by holding that a significant restriction on a defendant’s examination of a witness who had confessed to the same crime could alone deny a defendant a fair trial in violation of the due process clause of the Fourteenth Amendment. 549 F.2d at 857-59. In Welcome the state trial court had applied the voucher rule to restrict defendant’s questioning of the witness. The federal district court denied a writ of habeas corpus on the different ground that the confession was insufficiently reliable under Chambers. This court rejected both arguments, regarding the first as a techni*57cal restriction inappropriate in the criminal process and noting on the second that the issue of trustworthiness in Chambers related only to the hearsay testimony and that the confession itself need have only “some semblance of reliability.” Id. at 858-59.
Under these cases, therefore, the key issue here involves the reliability of the evidence relating to Baron’s alleged confession, and whether the trial court’s preclusion of this evidence deprived Grochulski of a fair trial. The majority opinion makes the facts appear cut and dried and hence this issue of little or no moment. It is necessary, however, to restate the facts to establish the appropriate context for evaluating the state evidentiary rulings. The restatement will, I suggest, demonstrate the applicability of Chambers and Welcome to this case.
1. Facts
Two related crimes took place five days apart from each other. Roth were engineered primarily by prosecution witness Karen Smagalla, a 16-year-old drug user and former “main-line” heroin addict, go-go dancer, and prostitute, with some help from her friend Sharon Quinn. Smagalla testified at the trial as the result of a plea bargain in which she was permitted to plead guilty to a “Class C” felony, manslaughter in the second degree, with a maximum sentence of 15 years and the expressed “hope” of walking out of the courtroom “without doing any jail time.” Each of the two crimes began with the intent to rob Robert Kortright, a supposed drug dealer. In both cases the assailants used the same modus operandi-three husky men, one with a sawed-off shotgun, had a female (Smagalla) pretend to be a hostage to gain entry into the victim’s apartment,2 and after the crime fled in a dark two-door car.
Rather remarkably Smagalla testified that she, with Quinn’s help, induced two different groups of three men each to commit the crimes. She stated that appellant Grochulski, who was one of Quinn’s boyfriends, John Ek, and Kenneth Borovina participated in the first robbery which, though originally planned for Robert Kortright’s apartment, was attempted at his parents’ and resulted in the killing of Robert’s father, Angel.3 Then, according to Smagalla, another group of three men, Robert Baron, also one of Quinn’s boyfriends, “Pete the Greek” Janulis, and David Cusick, planned and attempted the second robbery, this time at Robert Kortright’s apartment, in which Kortright was stabbed. Smagalla further testified that the assailants used Grochulski’s car, a blue Cadillac Eldorado which she described as having a hard top, in the first crime. Two teenage boys, bystanders on the street, however, told the police it was a “brown” Eldorado and one of them testified at trial that he saw a two-door “brown” Cadillac Eldorado, first saying it had a “dark” top, then saying he thought it had a “light brown” top. Grochulski’s car, in fact it was his brother’s, was a 1971 blue Cadillac Eldorado convertible with a white top. The car used for the second robbery, traced through the license plate to Robert Baron, was a “big,” two-door maroon 1973 Buick with a black vinyl hard top, described by witnesses to the police and registered in New Jersey as red with a brown top.
Grochulski presented an alibi defense at trial. Robert Garda, a member of the Jersey City Park Police, testified that on the night of the Kortright murder Grochulski was attending a party at Hope Jentis’ *58apartment. Grochulski also presented evidence of mistaken identity; his barber testified as to the “afro” styling of Grochulski’s hair a few days before the crime which the barber recorded in a book kept for that purpose. Because the afro style generally lasts from three to four months, Grochulski claimed that he would not have had straight hair on October 20, 1975, as described by witnesses at the Angel Kortright murder scene.4 Critical to Grochulski’s defense, however, was obtaining the admission into evidence of a statement made by Robert Baron in the presence of one Lawrence Joseph Grant that he, Baron, had killed Angel Kortright. This alleged confession, exculpating Grochulski, Ek, and Borovina, was set forth in Grant’s sworn and recorded statement to the Hudson County, New Jersey, prosecutor’s office. The confession was especially significant in light of the parting remarks of the men at the Angel Kortright crime, testified to by another Kortright son and his daughter who were present at the shooting, that “we will be back to get money from [Robert].”
Baron made his admission against penal interest to Grant, according to the latter’s sworn statement, under the following circumstances. Grant first met Baron through drug transactions in which Grant purchased or received free of charge drugs from Baron. Grant was later at the apartment of Drew Jeziorski on 168 Academy Street in Jersey City, New Jersey, when Baron brought the shotgun that killed Angel Kortright to Jeziorski’s apartment. Baron asked Jeziorski to hide the shotgun for him because he was afraid the police would raid his own place for drugs, find the gun, and charge him with the murder. According to Grant’s statement, “[Baron] said that he tried to rob someone, a man, and during the robbery the man pulled the shotgun he had his fingers on the shotgun and it went off” [sic]. Baron also told Jeziorski and Grant that “a girl named Karen Spingolli” [sic], another drug customer of Baron’s, called up Baron to tell him that he could rob Kortright, and through her Baron arranged to rob this man. Baron laughed about the homicide and said that “a man named Pete” was there and “some name like Danny he said was there.”
Quite obviously, Baron’s statement to Grant had the same three men committing the first crime as committed the second, corroborating what to many people would seem the more reasonable version of what probably occurred.5 How could, indeed why would, “Spingolli” get an entirely new crew to commit the same crime five days later? And if the shotgun given to Jeziorski was in *59fact the shotgun used to shoot the senior Kortright, as conceded by Grochulski’s prosecutor, is it not more reasonable to suppose that Baron, who Grant said was trying to hide the shotgun, actually did the shooting? At the least, I insist, a powerful argument to this effect could have been made on Grochulski’s behalf. This is especially so because the Hudson County prosecutor’s office had recovered the shotgun from Jeziorski’s apartment.
II. Trial Court’s Evidentiary Rulings
Having established the importance of Grant’s statement and of Baron’s admissions to him, we may better view the trial court’s rulings. The prosecution called Baron solely as a living exhibit for the jury to compare his appearance with that of the three defendants Grochulski, Ek, and Borovina, and asked him only his name and address. The defense then requested that the court declare Baron to be a hostile witness for its examination of him, but the court ruled Baron to be a defense witness for purposes of the voucher rule for all questions going beyond his name and appearance. When asked about events relating to the two crimes, Baron invoked the Fifth Amendment. However, he did acknowledge knowing Grant and Jeziorski but denied having confessed to Grant. Grant himself indicated that he did not wish to testify and, if necessary, would refuse to do so under the Fifth Amendment. He obviously must have been concerned about drug prosecutions.
When the Grochulski defense attempted to offer Grant’s statement both to impeach Baron’s credibility and as substantive evidence, the court refused to allow this. The court ruled that the statement was inadmissible for impeachment purposes under New York Criminal Procedure Law section 60.35 proscribing impeachment of a party’s own witness except by means of the witness’ prior sworn or written statement, N.Y. Crim.Proc.Law § 60.35 (McKinney). The court also ruled that the confession was not admissible through Grant as a statement against Baron’s penal interest, not because it was unreliable but on the basis that Baron was not “unavailable” as required by a state court evidentiary rule.6 Finally, the court noted that even if Grant’s statement could have been admitted for impeachment or as an exception to the hearsay rule, it would have been inadmissible because of a second-level hearsay problem. In other words, Grant himself was refusing to testify and testimony by the investigator he spoke with would be second-level hearsay.
On the basis of this reasoning the court added that any error regarding its initial evidentiary rulings would be harmless because of Grant’s refusal to testify. Yet this same court also refused to reach the question of immunity for Grant so that he could testify, because it had already concluded that Grant’s testimony would be inadmissible. Thus, the trial court’s evidentiary rulings were circular in logic-the court deemed its refusal to admit the Grant statement for impeachment or substantive evidentiary purposes to be harmless error because of the second level hearsay problem, but it saw no need to reach the immunity issue which would solve this hearsay problem because Grant’s testimony was declared inadmissible as either impeachment or substantive evidence. In any event, the trial *60court’s exclusion of the Grant statement, so critical to the defense, was improper under Chambers and Welcome.
III. Applicability of Chambers and Welcome
The majority upholds the trial court’s evidentiary rulings primarily by distinguishing Chambers and Welcome on the basis that in each “the witness on the stand admitted that he had confessed to the crime, but in each case the witness had later recanted.” Op. at 55. To me this is a distinction without a difference. It may go to the reliability of the confession, as discussed below, but I read neither Chambers nor Welcome to rest on the fact that the witness himself admitted making the confession which he later recanted. The majority states that “In the case at bar, the declarant [Baron] having denied making such a confession, the witness’s [Grant’s] testimony was not of significance.” Id. This is a non sequitur. The witness, Baron, having denied making the confession, it was all the more crucial to the defense to get the confession into evidence. I had never thought that the admissibility of a third party’s statement against penal interest going to the heart of a defense-a confession by another to having committed the crime in question-depended on whether the declarant admitted making the statement. The majority refers us to no case so holding.
Rather, Chambers and Welcome both apply when the confession itself has “some semblance of reliability,” Welcome, 549 F.2d at 859, and any related hearsay statements “[were made] under circumstances that provided considerable assurance of their reliability,” Chambers, 410 U.S. at 300, 93 S.Ct. at 1048. The issue, then, is one of reliability or, more specifically, whether other evidence corroborates the trustworthiness of the statement. See Fed.R.Evid. 804(b)(3), 804(b)(5). Here, despite the fact that Baron denied making the admission to Grant and that Grant had a mixed record as an informant, it seems to me that the above “reliability” tests were met.7 I find the following factors telling:
1. Grant and Baron were close acquaintances, with Grant, by his own admission, being one of Baron’s drug customers. Baron made his statements, to Grant or in Grant’s presence, spontaneously, shortly after the crime, under circumstances-the need to conceal the shotgun-providing adequate motivation for making them.
2. Jeziorski’s landlord actually found the shotgun, which like the one used in the Kortright killing was sawed-off, corroborating Grant’s story that Baron hid the weapon with Jeziorski.
3. The modus operandi of the two crimes was much the same, again tending to corroborate the admission.
4. Grant’s statement regarding Baron’s admission demonstrates intimate knowledge of the two crimes including how both Kortright father and son were frightened at first and tried “to jump” the robbers, as well as Karen “Spingolli’s” apparent motives for engineering the crimes-to continue to get drugs from Baron-and for falsely accusing Grochulski-to avoid any reprisal from Baron or Baron’s own drug supplier, one Negron. To me, the statement has a ring of truth.
5. The threat made by the first gang at Angel Kortright’s apartment that “we will be back to get money from [Robert]” in and of itself tends to indicate that the same gang committed both crimes.
6. The witness at the Angel Kortright scene testified that the getaway car was a “brown” Cadillac Eldorado, with a dark or light brown top. Grochulski’s brother’s car, though a Cadillac Eldorado, was a blue Con*61vertible with a white top, while Baron’s car, a “big” 1973 Buick, was maroon with a black vinyl top. The teenage witnesses may well have mistaken a big 1973 Buick for a 1971 Cadillac, and the color description certainly is closer to Baron’s car.
7. Baron and Grochulski were to some extent look-alikes-one 6'2", the other 6'3"; one 195 pounds, the other 200 pounds; each with “afro” hairstyles, at least at the time of the crimes.
8. Baron, it appears certain, committed the second crime and his car, traced by the license plate, was used in it.
9. Smagalla’s story, insofar as it implicates Grochulski, is rather remarkable in that she was able to enlist two entirely different sets of three men to seek to rob her “friend,” drug dealer, and sometime companion only a few days apart. Her story is weak in significant details.8
To be sure, as in Chambers and Welcome, there was evidence which could lead a jury to other inferences,9 including the identification testimony by the victims of the first crime. But the charge here was murder and the evidence above is sufficiently persuasive to corroborate the reliability of Baron’s statements as related by Grant. These statements were critical to the defense because they exculpated Grochulski, and the trial court erred in not admitting them.
First, the trial court should have allowed the statements in to impeach Baron’s credibility. The majority opinion, citing Lipinski v. New York, 557 F.2d 289 (2d Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978), argues that Welcome required setting aside the voucher rule “only under limited circumstances not present here.” Op. at 56. But in Lipinski this court upheld the New York voucher rule, N.Y.Crim.Proc.Law § 60.35 (McKinney), when the witness’ testimony was not critical to the presentation of an effective defense. 557 F.2d at 294. Here, as in Welcome, the excluded evidence related to a confession to the crime for which the defendant was being tried. Here, as in Welcome, a fair trial required limiting the applicability of the New York voucher rule.
Second, the trial court should have permitted the defense to introduce Baron’s statements to Grant as substantive evidence. Baron’s confession was a statement against penal interest, with corroborating circumstances to indicate the trustworthiness of the statement. A mechanistic application of this crucial evidence was simply inexcusable. See Chambers, 410 U.S. at 302, 93 S.Ct. at 1049. I say “mechanistic” because it seems to me that a declarant who denies making the admissions yet claims his Fifth Amendment right as to all questions pertaining to the facts is “unavailable” under the New York rule.10
Finally, the problem of second-level hearsay is not directly at issue because the trial court, as explained above, never dealt adequately with the defense requests to provide Grant with immunity to testify. Nevertheless, accepting arguendo that the only means for getting Baron’s confession into evidence would have been through hearsay testimony, forbidding such hearsay created a situation in which a combination of state evidentiary rules prohibiting Grochulski from impeaching his own witness (the voucher rule) and excluding critical, reliable hearsay statements severely limited the effectiveness of the Grochulski defense. This situation is precisely what the Supreme Court in Chambers held to constitute denial of a fair trial.
For the reasons stated in Chambers and Welcome, I believe that the state evidentiary rules/rulings here operated to deprive Grochulski of a trial in accord with traditional and fundamental standards of due process. Testimony regarding Baron’s confession should have been submitted to the *62jury as part of its consideration of all the evidence to determine whether the defendant was guilty beyond a reasonable doubt. “[Tjhat the right to present an effective defense inheres in the guarantee of a fair trial,” as Judge Garth pointed out in Virgin Islands v. Smith, 615 F.2d 964, 971 (3d Cir. 1980), is to me as clearcut as any principle of law.
. The voucher rule rests on the highly debatable premise, going back to the days of “oath-helpers,” 3A J. Wigmore, Evidence § 896 (1970), that a party who calls a witness “vouches for his credibility” and, therefore, may not impeach this witness, Chambers, 410 U.S. at 295-96, 93 S.Ct. at 1045-1046. In Chambers, as in the instant case, a witness had allegedly confessed to the crime with which the defendant was charged, but the court would not permit the defendant to cross-examine this witness because of the voucher rule. As Wig-more says, “there is no substantial reason for preserving this rule-the remnant of a primitive notion. .. . ” 3A J. Wigmore, supra at 665.
. According to Smagalla, in the first robbery, although the plan called for Smagalla to pretend to be a hostage to gain entrance to the apartment, Smagalla’s assistance was not needed when the assailants discovered that the front door was open. In the second she did pretend to be a hostage.
. It may be noted that Smagalla testified that Grochulski was wearing a “black trench coat” at the time of the Angel Kortright murder. All the witnesses to the crime, however, testified that the man with the shotgun who shot Kortright had on a jacket, a three-quarter length jacket or a three-quarter length leather jacket.
The bystanders on the street did not say they saw Smagalla though she claimed that she had walked up to the Kortright door with the three men and had then gone to the car.
. Iris Kortright, after identifying Grochulski, Ek, and Borovina at trial was asked on direct:
Q. And do you remember what that person looked like, the one with the shotgun?
A. Well, not-like I saw just the side of his face. I didn’t completely see his whole face.
Q. And what did he look like? Give us a description of the man you saw with the shotgun?
A. Well, he was about two hundred pounds. He had a leather jacket, short, and he was about forty.
On cross she was to admit that she had not picked Grochulski out of a lineup.
Rosemary Valentin, Iris’s cousin, also identified Grochulski, Ek, and Borovina in court. She had told detectives that the man with the shotgun was “six foot tall, 200 pounds, long dark brown hair.” David Kortright, Iris’s father and Rosemary’s uncle, told the police that the man with the shotgun was 5'7"-5'8", 200 pounds, very heavy, with a goatee. Interestingly, Smagalla testified that Baron might have had a goatee at the time of the Kortright murder and that he might not have-he would grow and then shave off his goatee.
. Grant’s statement went on to say that Baron gave free cocaine to Jeziorski so that the latter would keep the weapon. Grant then recounted going to a bar at a later date to get drugs from Baron and meeting “Pete the Greek” Janulis who recounted how Baron had shot Angel Kortright. According to Grant, Baron showed up at the bar and with “Pete the Greek,” laughed about going back to rob the son and cutting him with a knife, and about the fact that both father and son were scared at first and then tried to jump them. Grant denied knowing Grochulski. He added that it was not possible that Baron and Pete were talking about Grochulski’s committing the murder because Baron “told me he did it,” and said that “if the girl ever ratted he would shoot her” and that Baron wasn’t worried about her doing so because she “was to[o] afraid of him.”
Smagalla testified that “Pete the Greek” and Robert Baron hung out at the same bar on Ocean Avenue in Jersey City.
. The trial judge relied on People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970). There the Court of Appeals held that
The rule in New York should be modernized to hold that an admission against penal interest will be received where material and where the person making the admission is dead, beyond the jurisdiction and thus not available; or where he is in court and refuses to testify as to the fact of the admission on the ground of self incrimination.
26 N.Y.2d at 94, 308 N.Y.S.2d at 829, 257 N.E.2d at 19. The Grochulski trial judge took the New York Court of Appeals literally, holding that since Baron denied the admission rather than refusing to testify about it on the ground of self-incrimination he was not unavailable. Thus the ruling that the defense could not impeach Baron as to matters other than his name and appearance took on added importance. It was the cumulation of the rulings, here as in Chambers, that kept the Baron statement to Grant out of the evidence before the jury.
. Questions regarding the reliability of the confession and the reliability of related hearsay statements cannot be separated out analytically because the confession may be founded on the admissibility of hearsay testimony. Of course, had the trial court allowed in Grant’s statement by limiting the applicability of the voucher rule, or by regarding it as a statement against penal interest by Baron, as I think it should have, then we would be concerned only with the reliability of the confession and not of any hearsay. But if the so-called hearsay statements could only be admissible under Chambers then their reliability too is at issue.
. See note 3 supra.
. For example, Baron may have tried to conceal the weapon only because it was “hot”; he may have learned of the killing of Angel Kortright from Smagalla or Quinn; and it is of course possible that Grochulski’s car, despite its white top, may have been used in the first crime, rather than Baron’s, with its black top.
. See note 6 supra.