opinion: GREEN v. GEORGIA
  No. 78-5944.
  Decided May 29, 1979
  Per Curiam.
  Petitioner and Carzell Moore were indicted together for the rape and murder of Teresa Carol Allen. Moore was tried separately, was convicted of both crimes, and has been sentenced to death. See Moore v. State, 240 Ga. 807, 243 S. E. 2d 1, cert. denied, 439 U. S. 903 (1978). Petitioner subsequently was convicted of murder, and also received a capital sentence. The Supreme Court of Georgia upheld the conviction and sentence, 242 Ga. 261, 249 S. E. 2d 1 (1978), and petitioner has sought review of so much of the judgment as affirmed the capital sentence. We grant the motion for leave to proceed in forma pauperis and the petition for certiorari and vacate the sentence.
  The evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her. After the jury determined that petitioner was guilty of murder, a second trial was held to decide whether capital punishment would be imposed. See Ga. Code § 27-2503 (1978). At this second proceeding, petitioner sought to prove he was not present when Allen was killed and had not participated in her death. He attempted to introduce the testimony of Thomas Pasby, who had testified for the State at Moore’s trial. According to Pasby, Moore had confided to him that he had killed Allen, shooting her twice after ordering petitioner to run an errand. The trial court refused to allow introduction of this evidence, ruling that Pasby’s testimony constituted hearsay that was inadmissible under Ga. Code § 38-301 (1978). The State then argued to the jury that in the absence of direct evidence as to the circumstances of the crime, it could infer that petitioner participated directly in Allen’s murder from the fact that more than one bullet was fired into her body.
  Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was' against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it. In these unique circumstances, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U. S. 284, 302 (1973). Because the exclusion of Pasby’s testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
  Reversed and remanded.
  Mr. Justice Brennan and Mr. Justice Marshall, adhering to their view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), would vacate the death sentence without remanding for further proceedings.
  Georgia recognizes an exception, to the hearsay rule for declarations against pecuniary interest, but not for declarations against penal interest. See 242 Ga. 261, 269-272, 249 S. E. 2d 1, 8-9 (1978), quoting Little v. Stynchcombe, 227 Ga. 311, 180 S. E. 2d 541 (1971).
  The District Attorney stated to the jury:
  “We couldn’t possibly bring any evidence other than the circumstantial evidence and the direct evidence that we had pointing to who did it, and I think it’s especially significant for you to remember what Dr. Dawson said in this case. When the first shot, in his medical opinion, he stated that Miss Allen had positive blood pressure when both shots were fired but I don’t know whether Carzell Moore fired the first shot and handed the gun to Roosevelt Green and he fired the second shot or whether it was vice versa or whether Roosevelt Green had the gun and fired the shot or Carzell Moore had the gun and fired the first shot or the second, but I think it can be reasonably stated that you Ladies and Gentlemen can believe that each one of them fired the shots so that they would be as equally involved and one did not exceed the other’s part in the commission of this crime.” Pet. for Cert. 10.
  A confession to a crime is not considered hearsay under Georgia law when admitted against a declarant. Ga. Code §38-414 (1978); Green v. State, 115 Ga. App. 685, 155 S. E. 2d 655 (1967).
  See Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 592-593 (1978).