State v. Phelps

HANDLER, J.,

dissenting.

In this case, the lower courts have determined that hearsay conversations were admissible against defendant as declarations by a coconspirator under Evidence Rule 63(9). In doing so these courts rejected defendant’s contentions that there was insufficient independent proof — proof other than hearsay — of a conspiracy and of defendant’s participation in the conspiracy, which proof was a condition to the admissibility of the hearsay, and further, that the jury, in its final determination of the ultimate guilt or innocence of the defendant, should have been instructed to disregard the hearsay conversations if it found that such independent proof of a conspiracy was lacking. The Court now upholds this ruling.

The majority recognizes, as do I, that there is a well-established exception to the hearsay rule governing statements of coconspirators, Evidence Rule 63(9), and that the majority of jurisdictions in applying this exception do not require a separate jury determination of the adequacy of the independent evidence of the conspiracy as a condition necessary for the admission of such hearsay. It is the Court’s implementation of the coconspirator exception to the hearsay rule in the setting of this case that occasions my dissent.

I do not believe'that the general rule governing the application of the coconspirator hearsay exception can be used in cases such as the one before us. Here, damaging coconspirator hearsay was brought to the attention of the jury before the condition for its admissibility had been satisfied, namely, the *525introduction of independent proof of the existence of conspiracy. The potential for prejudice in this situation, perhaps inevitable and unavoidable, is so great that courts must strive to mitigate it. Such mitigation can, at least minimally, be accomplished (1) by giving the jury cautionary instructions on the conditional admission of coconspirator hearsay during the trial in advance of any independent evidence of the conspiracy, and (2) by permitting the jury to consider the adequacy of the independent proof of the conspiracy as a precondition to its consideration of the coconspirator hearsay in its final deliberations upon the ultimate guilt of the defendant.

I

The enormous potential for unfair prejudice to a defendant from the presentation of coconspirator hearsay is exemplified in this case. The major evidence relied on by the State in the trial were taped or recorded telephone conversations derived from wiretaps obtained pursuant to N.J.S.A. 2A:156A-10. However, not all of the recorded conversations were offered in evidence. Particular conversations on the tapes — those most incriminating — were extracted and spliced into a “composite.” In conjunction with these composites, which represented a concentration of the inculpatory conversations, the State used “log sheets,” written summaries of the selected taped conversations.

The theory of the prosecution was that defendant, Phelps, and William Gotshall, a bartender at Bach’s Tavern in Lake Hiawatha, had agreed to place bets jointly for one another. Early in the presentation of the State’s case, a witness alluded to certain taped conversations ostensibly between defendant and another individual referred to as “Bill from Bach’s,” who was identified as Gotshall. There were 27 taped conversations in which “Bill from Bach’s” refers to one “J.P.” or “Johnny” in the course of discussing gambling transactions with one Gerrizzo.

*526Defendant timely objected to the admission of any taped conversations of “Bill from Bach’s,” or any references thereto, as hearsay, on the ground that defendant had not been identified as a party to that conversation and it had not been shown by any independent evidence that he was a member of the conspiracy with the parties to the conversations. The State disagreed, asserting that the conversations were admissible as declarations by a coconspirator under Evidence Rule 63(9). After an extensive discussion outside of the jury’s presence, the trial judge allowed the “Bill from Bach’s” composite tape into evidence. Similarly, taped hearsay conversations between Gerrizzo and one DeMarco, referring to “J.P.” and “Bill,” were also admitted under Evidence Rule 63(9).

These evidentiary rulings were important to the State’s case. Even though there was some testimony by a witness that he could identify “J.P.’s” voice on the tapes as that of John Phelps, based on police work he and Phelps had performed together in the past, the “Bill from Bach’s” testimony was obviously crucial in establishing defendant’s identification. Significantly, the only time that defendant’s full name was mentioned throughout the entire wiretap surveillance was in a single conversation between Gerrizzo and “Bill from Bach’s.” That conversation pertained to a dispute between “Bill from Bach’s” and Gerrizzo over the balance in the gambling account shared by “J.P.” and “Bill from Bach’s.” Gerrizzo quoted a figure, and Gotshall insisted that it should be higher. At that point, Gerrizzo suggested that he, “Bill from Bach’s,” review the preceding day’s action, item-by-item. In response to a particular bet, Gotshall stated “that was Johnny Phelps,” clearly implying that “Johnny Phelps” was the oft-mentioned “J.P.” Another hearsay discussion between Gerrizzo and DeMarco was also read to the jury that further confirmed the relationship between “J.P.” and “Bill from Bach’s” as joint bettors.

This factual picture discloses the overwhelming hearsay that dominated the prosecution of this case. It underscores the critical significance that must be invested in the independent *527proof of conspiracy, which becomes the evidential gate through which the hearsay passes.

II

Traditionally, courts have required that the prosecution establish defendant’s connection with an existing conspiracy by “proof aliunde,” or independent evidence, before admitting hearsay declarations by coconspirators. “Otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 467, 86 L.Ed. 680, 701 (1942); see also United States v. Nixon, 418 U.S. 683, 701 n. 14, 94 S.Ct. 3090, 3104 n. 14, 41 L.Ed.2d 1039, 1060 n. 14 (1974) (admission of coconspirator hearsay requires “substantial, independent evidence of the conspiracy, at least enough to take the question to the jury” (dictum)).

A majority of federal and state authorities have adopted the Glasser “bootstrap” argument and have accordingly required that the conditions of admissibility be established by proof independent of the hearsay declarations themselves. See, e.g., United States v. Provenzano, 620 F.2d 985, 999 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980); United States v. James, 590 F.2d 575, 580-81 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979); United States v. Jones, 542 F.2d 186, 203 (4th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976); United States v. Alvarez, 696 F.2d 1307, 1309, 1310 (11th Cir.1983); United States v. Jackson, 627 F.2d 1198, 1214-15 (D.C.Cir.1980); United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir.1979); United States v. Rosales, 584 F.2d 870, 872 (9th Cir.1978); United States v. Ziegler, 583 F.2d 77, 79-80 (2d Cir.1978); United States v. Santiago, 582 F.2d 1128, 1133 n. 11 (7th Cir.1978); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978). But see United States v. Vinson, 606 F.2d 149, 153 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 *528L.Ed.2d 756 (1980); United States v. Martorano, 557 F.2d 1, 11-12 (1st Cir.1977), cert. denied, 435 U.S. 922, 98 S.Ct. 1484, 55 L.Ed.2d 515 (1978); United States v. Petrozziello, 548 F.2d 20, 23 n. 2 (1st Cir.1977) (declarant’s statement is considered supplementary to whatever independent evidence prosecution offers to satisfy preconditions of admissibility). New Jersey courts have long adhered to the independent proof requirement. E.g., State v. Dougherty, 88 N.J.L. 209, 213 (E. & A. 1915); State v. D’Arco, 153 N.J.Super. 258, 263-64 (App.Div.1977); State v. Benevento, 138 N.J.Super. 211, 217 (App.Div.1975); State v. Sherwin, 127 N.J.Super. 370, 383 (App.Div.1974).

The critical question then is not whether there must be independent proof of a conspiracy involving the defendant but whether the jury, as well as the judge, must determine the adequacy of such proof in order to consider coconspirator hearsay tending to establish such a conspiracy. The implicating statements of a coconspirator can have a dramatic impact on a jury. Consequently, determination of the predicates to admissibility can be critical to a trial’s outcome. If the judge alone resolves the preliminary questions of admissibility, “there is the possibility that the defendant has been deprived of trial by jury on a critical question of fact.” Note, “The Impact of Federal Rule of Evidence 104 on the Coconspirator Exception to the Hearsay Rule,” 28 Emory L.J. 1115, 1116 (1979) (hereinafter referred to as “The Coconspirator Exception”). The drafters of Federal Rule of Evidence 104, which is “comparable to our own Evid.R.8,” ante at 514, cautioned that “[i]f preliminary questions of conditional relevancy were determined solely by the judge * * * the functioning of the jury as a trier of fact would be greatly restricted and, in some cases virtually destroyed.” Fed.R.Evid. 104, Notes of Advisory Committee on Proposed Rules at 41 (1975). In fact, the Appellate Division here acknowledged that a “reasonable argument” may be advanced for an interpretation that could permit the jury to consider whether there is independent proof of the conspiracy. 187 N.J.Super. at 369.

*529Nevertheless, according to the majority, Evidence Rule 8 provides “clear guidance” concerning who should determine the admissibility of coconspirator declarations. Ante at 513. The majority asserts that the conditions precedent to admission of coconspirator hearsay “focus on the reliability of the hearsay, and not its relevance.” Ante at 514 (emphasis in original). However, contrary to the Court’s implicit suggestion, Federal Rule of Evidence 104, and our own counterpart, Evidence Rule 8, simply by codifying the common law allocation of the roles of judge and jury in deciding preliminary questions of fact (by distinguishing between matters of competency, to be determined by the judge, and relevancy, to be decided by the jury1), did not dispositively resolve the question of the proper procedure for determining the admissibility of coconspirator statements. “Although clarification of the proper procedure for determining the admissibility of coconspirators’ statements was needed, the federal rules did not recognize the problems inherent in this area.” Note, “The Coconspirator Exception,” supra, 28 Emory L.J. at 1119. In fact, it has been noted by several courts and legal commentators that with regard to such statements, the rule is ambiguous, for the preliminary issues involved in this context “could be equally well characterized as matters of competency or of conditional relevancy.” Id.; see also United States v. James, supra, 590 F.2d at 579 (neither language of Federal Rule of Evidence 104 nor Advisory Committee’s notes indicate whether coconspirator statements fall under rule 104(a) as competency questions or rule 104(b) as relevancy questions); United States v. Enright, 579 F.2d 980, 984 (6th Cir.1978) (unclear whether rule 104(a) or 104(b) governs admissibility); Note, “Inconsistencies in the Federal Circuit Courts’ Application of the Coconspirator Exception,” 39 *530Wash. & Lee L.Rev. 125, 132 (1982) (“[r]ules 104(a) and (b) * * have not resolved conclusively whether the judge or the jury should determine the ultimate admissibility of coconspirator statements”).

It is not unreasonable to suggest that a determination of whether to admit the hearsay declarations of coconspirators involves a question of relevancy conditioned on fact, and thus, under Evidence Rule 8(2), is appropriately within the province of the jury. Past practice in our jurisdiction and sound policy reasons reasonably require that the trial judge alone should not determine whether the condition precedent to admissibility has been satisfied. See, e.g., State v. D’Arco, supra, 153 N.J.Super. 258; State v. Farinella, 150 N.J.Super. 61 (App.Div.), certif. den., 75 N.J. 17 (1977).

As noted, neither the rules of evidence nor their annotations lend guidance with respect to whether the existence of the conspiracy is properly before the judge as a question of competency or the jury as a question of relevancy. While the weight of authority characterizes the problem as one of competence, thereby vesting the judge with exclusive authority, it is reasonably clear that the central purpose of this characterization is to prevent the introduction of evidence that may unfairly prejudice a defendant.

Ironically, the rule espoused by the majority — permitting the jury to consider the coconspirator hearsay without qualification — serves only to aggravate the potential for prejudice to the defendant. Labeling the independent proof of the conspiracy a matter of “reliability,” relating only to admissibility of the hearsay, relegates the task of considering such independent proof exclusively to the court.

Those courts that have eschewed the separate dual judge-jury determination of admissibility have pointed to the tremendous impact on the jury of a statement by a coeonspirator. They have recognized that there is the danger that the jury will not make the preliminary determination of the existence of a con*531spiracy at all, but will be so influenced by the hearsay that it cannot help but consider that evidence in connection with defendant’s guilt. United States v. James, supra, 590 F.2d 575; United States v. Santiago, supra, 582 F.2d 1128; see Carbo v. United States, 314 F.2d 718, 736 (9th Cir.1963) (the hearsay should “be considered by the jury in reaching its determination upon the issue of innocence or guilt. It will not do to tell the jury that it must reach its determination first” (emphasis in original)); United States v. Dennis, 183 F.2d 201 (2d Cir.), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). Arguably, if the jury concludes that the independent evidence is insufficient, but because of the coconspirator’s statements believes the defendant guilty, it may feel obliged somewhow to find the preliminary facts proved, lest it exculpate a guilty person. Note, “The Coconspirator Exception,” supra, 28 Emory L.J. at 1126. See Gibson, “Co-Conspirator Declarations: Constitutional Defects in the Admissions Procedure,” 9 U.C.D.L.Rev. 63 (1976); cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (jury will feel pressured to find trustworthy confession to be voluntary).2

The majority accepts these arguments when it notes that “[i]t is too much to expect jurors to be able to disregard evidence they have already properly heard upon their determination at some later time that conditions precedent to admissibility have not been fulfilled.” Ante at 516. The Court refers to the observation that “it is a practical imposibility for laymen, and for that matter most judges, to keep their minds in the isolated *532compartments that this requires.” Id. (quoting United States v. Dennis, supra, 183 F.2d at 231).

I am disturbed by the Court’s acceptance of this supposed decisional impossibility as a reason for resolving the handling of the issue contrary to the interests of the defendant. Advocates of a jury determination of the preliminary fact have countered that the “denial of reality” effected by such a procedure “seems worthwhile when the alternative apparently leads to far greater conflicts with reality.” Kessler, “The Treatment of Preliminary Issues of Fact in Conspiracy Litigations: Putting the Conspiracy Back Into the Coconspirator Rule,” 5 Hofstra L.Rev. 77, 85 (1976) (hereinafter referred to as “The Coconspirator Rule”). . Concern for the quality of jury deliberations and recognition of the particularly suspect and exceptionally powerful nature of this species of hearsay suggest that less prejudice would inure to the defendant by allowing the jury to consider admissibility. Jury consideration of the independent evidence as a condition of admissibility would be conducive to a more critical and conscientious assessment of the evidence ultimately pointing to guilt or innocence. If less prejudice would result by giving the issue of the adequacy of the independent evidence to the jury, it seems that the question under our operative rule, Evidence Rule 8, could just as freely be characterized as one of conditional relevance.3

*533There is some historical support for this approach. Traditionally, both judge and jury shared the task of determining the admissibility of coconspirator declarations. “Initially, the judge would make a threshold finding of whether the prosecution had properly laid the foundation and met the burden of proving the existence of the conspiracy by independent evidence.” Note, “Evolution of the Coconspirator Exception to the Hearsay Rule in the Federal Courts,” 16 New Eng.L.Rev. 617, 622 (1981). If this determination was in favor of the prosecution, the jury would be cautioned from considering the out-of-court declarations unless it was satisfied that the existence of a conspiracy had been proven by independent evidence. Id.; see also United States v. Apollo, 476 F.2d 156, 163 (5th Cir.1973); E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 27.06 (3d ed. 1977). “Even after the judge was satisfied that the foundation had been laid, the jury still had the task of deciding the true admissibility of any statements * * * Thus, the trial judge had a strong hand in determining the admissibility, but the jury had a second bite at the apple.” Note, “Evolution of the Coconspirator Exception to the Hearsay Rule in the Federal Courts,” supra, 16 New Eng.L.Rev. at 623.

Although, as noted by the Court, the majority of federal circuit courts have interpreted Federal Rule of Evidence 104 to require that the trial court alone dispose of the issue of the admissibility of a coconspirátor’s hearsay statement, ante at 514, the question has not been dispositively resolved. Under Rule 104, some courts continued to adhere to the traditional common-law practice of requiring cautionary instructions to the jury to disregard the hearsay statements if the jurors could not find that defendant was a participant in the conspiracy on th$ *534basis of independent evidence. See, e.g., United States v. Pennett, 496 F.2d 293 (10th Cir.1974). Other courts refused to find prejudicial consequences resulting from such a practice, although they observed that giving the jury a “second bite at the apple” is very generous to a defendant. United States v. Testa, 548 F.2d 847, 853 n. 3 (9th Cir.1977); United States v. Herrera, 407 F.Supp. 766 (N.D.Ill.1975). Similarly, in United States v. Petrozziello, supra, 548 F.2d 20, the court, while concluding that Federal Rule of Evidence 104(a) requires judge-determination of the question, failed to find error in the lower court’s instruction that the jury decide the admissibility of the coconspirator’s declarations. The court noted that “[t]he added layer of fact-finding may not be needed, but it can seldom prejudice a defendant.” Id. at 23.

I am satisfied that so long as the judge is careful in making his or her own determination, there will, normally, be no harm in permitting the jury to reconsider the matter. This State has long placed a high premium on the function of the jury as ultimate arbiter of guilt, allowing nothing to come between the jury and the discharge of this function. State v. Collier, 90 N.J. 117 (1982); State v. Ingenito, 87 N.J. 204 (1981). To remove from the jury the issue of independent proof of the conspiracy relegates to the judge instead the task of resolving the central issue of guilt — a result inconsistent with the long-protected jury role. Further, as a matter of policy, I am confident that, more often than not, allowing the jury to determine specifically the adequacy of the independent evidence of conspiracy as a condition for its consideration of coconspirator hearsay will enhance the decisional process and the "ultimate search for truth.

Ill

In the context of this case there are additional reasons for permitting the jury to determine the adequacy of the indepen*535dent evidence of the conspiracy involving the defendant before its evaluation of a coconspirator’s extrajudicial declarations.

Typically in a complex conspiracy prosecution, the prosecutor seeks to introduce coconspirator hearsay testimony before its basic admissibility has been demonstrated by independent, non-hearsay evidence of the conspiracy involving the defendant. The reasons for allowing the hearsay to come before the jury “out-of-order” are usually grounded in notions of prosecutorial convenience and strategy. Frequently it is easier and more effective for the prosecution to make its presentation by proceeding first with the hearsay and later with the “connecting” evidence.

The preferred course, naturally, is for the prosecution to present proof that would fulfill the conditions for the exception before offering the coconspirator declarations, at least when it is practicable to do so. United States v. Macklin, 573 F.2d 1046, 1049 n. 3 (8th Cir.1978); United States v. Petrozziello, supra, 548 F.2d at 23 n. 3. When this is impracticable, some authorities suggest that the trial judge defer his or her ruling on admissibility until the close of the government’s case, United States v. Vinson, supra, 606 F.2d at 152-53; United States v. Ziegler, supra, 583 F.2d at 80, or even until after the receipt of all the evidence, United States v. Ciampaglia, supra, 628 F.2d at 638; United States v. Bell, supra, 573 F.2d at 1044. Although many opinions endorse the efficacy of a so-called preliminary “James hearing,” see United States v. James, supra, 590 F.2d at 577-80, to determine if the conditions of the coconspirator exception have been met, they generally regard this as a. discretionary procedure. See, e.g., United States v. Whitley, 670 F.2d 617, 620-21 (5th Cir.1982); United States v. Ricks, 639 F.2d 1305, 1307-10 (5th Cir.1981).

In consequence, many courts have received eoconspirator declarations into evidence provisionally or conditionally, subject to the later presentation of facts establishing the predicates for admission. E.g., United States v. Vinson, supra, 606 F.2d at *536152-53; United States v. James, supra, 590 F.2d at 582; United States v. Santiago, supra, 582 F.2d at 1131; United States v. Stanchich, supra, 550 F.2d at 1298. This practice must recognize the risk or possibility that the prosecution may fail to subsequently “connect up” the hearsay to the defendant by facts authorizing its admission. However, the jury will have been permitted to hear damaging hearsay, which usually strongly suggests the existence of a criminal conspiracy and implicates the defendant as a participant in it, before independent evidence is furnished to establish defendant’s membership in the conspiracy. See State v. Simon, 79 N.J. 191 (1979) (recognizing devastating impact that existence of conspiracy through special interrogatory can have on jury’s deliberations, in effect, “programming” jury toward determination of ultimate guilt).

In many cases, the only practical antidote to this form of prejudice available to the courts is the cautionary instruction. Thus, at the very least the jury must be instructed at the time “unconnected” or premature coconspirator hearsay is introduced to be prepared to disregard such evidence in the event independent evidence connecting defendant to the hearsay fails to materialize. Presumably, the court, throughout the trial, will caution the jury to refrain from reaching any definitive conclusions bearing on guilt or innocence until all the evidence has been presented and the case is submitted to the jury for its final deliberations in accordance with the court’s full instructions. A special cautionary instruction that attempts to sanitize the jury’s consideration of coconspirator hearsay would be consistent with the court’s continuing efforts to maintain objectivity and open-mindness in the jury.

In my view, such special cautionary instructions dealing with coconspirator hearsay given in the course of the trial are indispensable. This makes it imperative that when the case is finally submitted to the jury, it be authorized to consider and determine the existence of independent evidence connecting defendant with the conspiracy as a precondition to its considera^ *537tion of the coconspirator hearsay. Unless such a final instruction is given to the jury, it might well infer, in light of previous cautionary instructions to conditionally disregard the hearsay evidence if no independent evidence is produced, that the trial court itself determined that such independent evidence had been produced. The jury, not having been instructed to the contrary, would likely conclude that there was adequate independent evidence of defendant’s conspiratorial involvement. The jury most probably would give even greater weight to the coconspirator testimony than it would had it otherwise been instructed by the court to evaluate the independent evidence of the conspiracy as a basis for considering the hearsay.

In sum, by instructing the jury, both during the trial and in its final deliberations, that it may not consider coconspirator statements as evidence of defendant’s guilt until it has found independent proof of the existence of the conspiracy implicating the defendant, the trial court ensures that the policies that underlie this corroboration requirement are more satisfactorily honored. “The charge communicates to the jury the reluctance that exists, as a matter of law, in crediting this evidence. It tells them that the courts recognize its potential unreliability. It alerts them to the danger of unduly trusting the statements.” Kessler, “The Coconspirator Rule,” supra, 5 Hofstra L.Rev. at 96. This procedure may not reflect all of the realities of the human decision-making process. Id. Nevertheless, relegating to the court alone the task of determining the preliminary issue is not a preferred alternative, as it generally may also be vulnerable to undue influence from the hearsay. If, as the majority suggests, the task is truly a “practical impossibility,” ante at 516, the delegation of the task to the jury, as well as the judge, should enhance the quality of decision-making and the determination of truth. And, in the final analysis, since it is the jurors who will make the ultimate fact determination, the “co-conspirator guidelines that were created to protect against *538improvident fact decisions should be given to them.” Kessler, “The Coconspirator Rule,” supra, 5 Hofstra L.Rev. at 97.

For these reasons, I respectfully dissent.

Justice O’HERN joins in this dissent.

For affirmance—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, POLLOCK and GARIBALDI—5.

Dissenting—Justices HANDLER and O’HERN—2.

Issues raising questions of competency or reliability are conclusively resolved by the judge. 1 J. Weinstein & M. Berger, Weinstein’s Evidence § 104 (1979). Preliminary issues that raise questions of the probative force of evidence — relevancy—must be left to the jury. Id.

Analogizing to the approach employed by courts to determine the admissibility of confessions, under the "New York rule” the judge was required to make a prima facie determination of the voluntariness of the confession, but the question was ultimately submitted to the jury. (Cf. the "Massachusetts rule,” where the judge made the initial determination but resubmitted the issue to the jury for their "second opinion.”) This approach was invalidated by the Supreme Court as "posting] substantial threats to a defendant's constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined.” Jackson v. Denno, supra, 378 U.S. at 389, 84 S.Ct. at 1787, 12 L.Ed.2d at 922.

It has been strenuously argued that the preliminary facts at issue in the coconspirator exception do not implicate concerns of competency.

[T]he independent-proof-of-preliminary-facts requirement of the coconspirator rule is not a competency requirement. The requirements are actually guides for the trier of fact. No matter what the verbiage of the declaration, the independent evidence requirement instructs the trier of fact how to treat the proof. If the statement does not prove the conspiracy, he is to eliminate it from his consideration until he finds that proof in the record. If the statement does prove the conspiracy, the trier of fact is instructed to perform the same intellectual analysis * * * to corroborate the credibility of the declarant. It is the fact assessment attribute of this unique requirement that makes any judicial decision of the preliminary issue inappropriate. The policy behind the rule is to balance the need for the testimony *533against its suspect character. The method is the imposition of a procedure through which relevance and credibility are tested. Since the jury decides both of these issues, it must decide the preliminary fact question as well. To take the issue from the jury is to diminish the protection of the preliminary requirement. [Kessler, "The Coconspirator Rule”, supra, 5 Hofstra L.Rev. at 95.]