(dissenting):
I dissent. The defendant did not receive a fair trial, I submit, because he was prevented from adducing the evidence that was potentially the most persuasive evidence he had available for establishing his defense.
At trial the defendant sought to introduce the testimony of the two arresting officers and of the defendant’s sister that defendant’s brother-in-law, Larry Yarring-ton, had told each of them that only Yar-rington had committed the burglary and that the defendant had entered the premises only to talk Yarrington out of the burglary. The testimony of the two officers and the defendant’s sister-in-law was ex-*589eluded by the trial court. The majority sustains that ruling on the basis that the substance of the evidence was adduced through another source, Larry Yarrington himself. In light of the realities of the trial process, that ruling, in my view, is an inadequate answer and one that raises serious constitutional questions.
The right of a defendant to produce evidence in his own behalf is one of the most fundamental aspects of a fair trial. See, e.g., Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). No court, under either the Federal or the Utah Constitution, may confine a defendant to the least effective witnesses he has to establish a defense. I respectfully submit that the difficulty with the majority position is that it fails to take into account the realities of a trial and the important, perhaps determining effect that the credibility of the testimony of the defendant’s proposed witnesses might have had on the outcome of this case. The defendant’s version of the case was limited to the evidence introduced through one person who had already admitted guilt in the same burglary. Yarrington was, of course, subject to impeachment because of that crime and may have been under some constraint as a result of his plea. Furthermore, the jury, knowing that Yarrington had nothing to lose, could have thought that his story was concocted after the event to help his brother-in-law, especially since the testimony adduced did not indicate that Yarrington had maintained Stephens’ innocence from the beginning.
Two of the witnesses the defendant wanted to call were police officers who would have testified of Yarrington’s statement, made at the time of the arrest, that defendant had nothing to do with the burglary. That would, at the very least, have rebutted any inference of a later fabrication by Yarrington and might well have been more believable than Yarrington’s own trial testimony, because at the time of the arrest he was speaking spontaneously, before a story could have been concocted. Although defendant’s sister’s testimony might well have been biased, her credibility is neither for us nor the trial court to assess.
A defendant has a constitutional right to have the validity of his witnesses’ testimony determined by his peers. To foreclose that by an evidentiary ruling excluding the testimony deprives a defendant of a fair trial.
This case is similar in material respects to Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). There the United States Supreme Court reversed a murder conviction because a state trial court had refused to allow the defendant to cross-examine a third person’s repudiation of a prior confession to the crime, and had also excluded testimony by others to whom the third person had confessed. The trial court’s ruling was based on technical state rules of evidence which the Supreme Court found inadequate in the face of a defendant’s right to produce witnesses in his own behalf and to cross-examine witnesses who testify against him.1
Furthermore, the exclusion of the evidence is not sustainable, in my view, on the ground that the testimony was hearsay. The statements of Yarrington constituted declarations against interest because they incriminated himself, even though they also absolved defendant. Utah R.Evid. 63(10).2 The availability of the declarant in this case should not work to exclude the evidence. The language of the Supreme Court in *590Chambers v. Mississippi, supra, is applicable in the instant case:
In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.
410 U.S. at 302, 93 S.Ct. at 1049.
I think the case should be reversed and remanded for a new trial.
HOWE, J., concurs in the dissenting opinion of STEWART, J. DURHAM, J., does not participate herein.. In Chambers, the testimony which was excluded would also have been relevant to impeach the trial testimony of the third person who had made the inculpatory remarks but later denied having made them.
. I realize that Rule 63(10) requires that the declarant be unavailable and that the declarant was not unavailable in this case. But to exclude the evidence in this case on that ground is simply absurd. The availability of the de-clarant makes the evidence more, not less, reliable. See Chambers, supra, at 301 & n. 21, 93 S.Ct. at 1049 & n. 21.