What is the test for admitting or denying hearsay testimony in a criminal case?

Where hearsay testimony is conditionally introduced, we have required that the trial judge make the ultimate determination of whether a foundation has been established. United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979); United States v. Weiner, 578 F.2d 757 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). Before the testimony will be allowed to go to the jury, the prosecution must show that (1) the declaration was in furtherance of the conspiracy, (2) it was made during the pendency of the conspiracy, and (3) there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant to it. Weiner, 578 F.2d at 768.

The quantum of independent proof required for the third element of the foundation requirement is "sufficient, substantial evidence to establish a prima facie case." Weiner, 578 F.2d at 768. We have recently emphasized the importance of the first element in United States v. Fielding, 645 F.2d 719 (9th Cir. 1981), holding that mere descriptions of the conspiracy to a nonconspirator are not "in furtherance of" the conspiracy.

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The trial judge may make a preliminary determination of admissibility or may admit the testimony conditionally, subject to "connecting up" with the foundation to be eventually laid by the prosecution. United States v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981) and --- U.S. ----, 101 S.Ct. 1525, 67 L.Ed.2d 821 (1981).

When there has been sufficient evidence to sustain a finding of conspiracy, we have held that giving an instruction like that given here not reversible error. We have called such an instruction "unduly generous." United States v. Miranda-Uriarte, 649 F.2d 1345, 1351 n.4, 1353 (9th Cir. 1981); United States v. Lutz, 621 F.2d 940, 946 n.2 (9th Cir.), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1980) and 449 U.S. 1093, 101 S.Ct. 890, 66 L.Ed.2d 822 (1980); United States v. Testa, 548 F.2d 847, 853 n.3 (9th Cir. 1977).