ON PETITION FOR REHEARING
FEINBERG, Circuit Judge:The United States has petitioned for a rehearing by the panel, and, in view of the statements contained in petitioner’s brief, it seems appropriate to comment briefly on them. The United States claims that the panel decision has unveiled
a new test which, as a pre-condition to admitting a declaration of a co-conspirator, requires not only the usual findings that the declaration is in furtherance of a conspiracy of which the defendant was then a member, but the additional findings that the declaration is “reliable” and that it is not “crucial” to the Government’s case or “devastating” to the defense.
In addition, the United States claims that the “new test” is unsupported by Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), and that that decision, if anything, stands for the proposition that the traditional co-conspirator rule in the federal courts should remain untouched.
*1107We believe that the Government reads too little into Dutton and too much into the panel decision in this case. While the Court did state in Dutton that “we do not question the validity of the co-conspirator exception applied in the federal courts,” id. at 80, 91 S.Ct. at 215, it did so only to make clear what the issue was before it. The analysis in Dutton, as indicated by the panel opinion in this case, requires another look at the traditional co-conspirator rule in the federal courts.1 The amicus brief filed by the Solicitor General of the United States in Dutton itself went into that question extensively. At least four circuit courts that have encountered the question since Dutton was decided have felt compelled to consider whether the Court’s decision in Dutton affected the traditional co-conspirator rule, see the authorities collected in footnote 11 of the panel opinion, and two of them have gone through the same analysis as the panel opinion in this case. United States v. Adams, 446 F.2d 681, 682-84 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); United States v. Weber, 437 F.2d 327, 335-40 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). Therefore, we adhere to the position that ignoring the implications of Dutton is unwarranted and unwise.
The United States claims that as a result of the panel decision application of the co-conspirator rule in the district courts in this circuit will be unworkable. The Government suggests that from now on, because of the panel opinion, before a district judge decides that the declaration of a co-conspirator may be admitted, the judge must determine not only that the declaration is “reliable” but also that it is neither “crucial” to the Government’s case nor “devastating” to the defense. The panel opinion made no such holding. In referring to the latter two criteria, we were acting out of caution — perhaps with an excess of that quality — to satisfy ourselves that the declarations of Puco’s co-conspirator, Gonzalez, were properly admitted regardless of how broadly Dutton might be construed. We did not hold that Dutton had to be so expansively construed, and we do not do so now. Specifically, we did not and do not hold that a trial judge must find, before admitting a co-conspirator’s declaration, that it is not “crucial” to the Government’s case or “devastating” to the defense.
For future applications of Dutton to similar situations, we suggest that when a co-conspirator’s out-of-court statement is sought to be offered without producing him, the trial judge must determine whether, in the circumstances of the case, that statement bears sufficient indicia of reliability to assure the trier of fact an adequate basis for evaluating the truth of the declaration in the absence of any cross-examination. That this is not an insuperable problem is indicated by the decisions cited above. Thus, in United States v. Weber, supra, Judge Adams pointed out that the co-conspirator’s declarations in that case presented “the traditional hallmarks of reliability because they were uttered spontaneously” and were against his penal interest when made. 437 F.2d at 340; cf. United States v. Glasser, 443 F.2d 994, 999 (2d Cir. 1971). In most cases the determination that a declaration is in furtherance of the conspiracy a determination that the trial judge now must make in every case for admissibility2—will decide whether sufficient indicia of reliability were present. While *1108there may be exceptions, we do not think that they will be frequent.
' Finally, we note that Puco’s counsel apparently intends to petition the Supreme Court for certiorari.3 If the Government desires a further clarification of the implications of Dutton for the co-conspirator rule, it can choose to support Puco’s petition in order to obtain guidance from the most reliable source for interpretation of Dutton.
Petition for rehearing denied.
. Justice Stewart’s opinion in Dutton makes clear that the fact that an out-of-court declaration comes within a traditional hearsay exception does not in itself assure the constitutionality of its admission into evidence. See 400 U.S. at 81-82, 91 S.Ct. 210. Decisions not dealing with the confrontation question are not controlling on this issue.
. Along with the determination that there is sufficient other evidence to establish that the defendant against whom the declaration is offered was a member of the conspiracy when the declaration was made.
. Appellant filed a motion, -which was granted, to stay the issuance of the mandate pending the filing of a petition for certiorari.