dissenting:
The court relies entirely on procedural grounds in affirming the aspect of this case dealing with the taped conversations. It determined that the defendant’s attorney voluntarily withdrew the tapes, thereby obviating the need for a ruhng by the trial court on their use, that the defendant failed to make an offer of proof so that the record in this court could show whether the tapes would have been helpful to the defendant, and that the defendant failed to specify in his written motion for a new trial error in excluding the tapes thereby waiving that issue. I do not agree with this view of the record and, therefore, would reach the constitutional issues implicit in denying the defendant, on the basis of a state statute, the use of the tapes to impeach his wife when she testified against him.
When the tapes were first referred to by defendant’s counsel in cross-examining the wife, the State objected and the objection was sustained. The State’s own interpretation of the record as reflected by the following statements appearing in its brief indicates that the tapes were excluded by the trial court:
“The State objected to the attempted introduction of the tapes and the trial court sustained that objection.
The trial court refused to allow the tapes to be used, stating that the tapes were violative of Illinois law.”
The day after the trial court sustained the State’s objection to reference to the tapes, defendant’s counsel asked that the tapes be marked as defendant’s exhibits. Thereupon, even though the State made no objection, the trial court informed counsel it was the court’s duty to warn counsel about the Illinois eavesdropping statute.1 that counsel might be violating the law by turning the tapes over to the trial court or the prosecutor, and that the court would ‘hate to see you [defendant’s counsel] arrested as a result of you turning this over to the court.”
It was the responsibility of the trial judge to permit the use of any proper evidence which might have assisted the court and the jury in arriving at the truth and in assuring that the defendant would have a fair trial. Instead, the trial court with good intentions, but in a misdirected effort to protect counsel from violating the eavesdropping statute, chilled defendant’s offer of the tapes which were being presentid for the purpose of impeaching a crucial prosecution witness. The trial court erred in emphasizing the eavesdropping statute rather than the defendant’s constitutional right to confront the witness against him and in discouraging the use of the tapes by suggesting to defendant’s counsel that he was exposing himself to criminal liability. The record shows that only after receiving the tjial court’s warning about the pitfalls of the eavesdropping statute did defendant’s counsel inform the court he was withdrawing tire tapes and not using them. In view of the trial court’s warning, this was not a voluntary withdrawal. Certainly, it was not the equivalent of the withdrawal of an objection to evidence of a previous conviction which this court relies on in citing People v. Jones (1970), 47 Ill.2d 135, 140, 265 N.E.2d 125. In that case defendant’s attorney after initially objecting, withdrew his objection, saying, “Oh, well, let it go in. It doesn’t make any difference.”
Although the motion for a new trial did not specifically mention the tapes, it did refer to error committed by the trial court in sustaining objections by the State to questions propounded by defense counsel and in denying due process to the defendant. If the issue of improper exclusion of the tapes was not raised by the motion for a new trial, this is a proper case for the application of Supreme Court Rule 615(a) relating to the consideration of plain errors or defects affecting substantial rights not brought to the attention of the trial court, particularly since, as pointed out below, the exclusion of the tapes may have deprived the defendant of sixth amendment rights. People v. Pickett (1973), 54 Ill.2d 280, 282-283, 296 N.E.2d 856.
The conclusion reached by this court that file case should not be remanded because no offer of proof was made and no description of the alleged contents of the tapes appears in this record overlooks the circumstances under which the tapes were excluded. The failure of the defendant to make a formal offer of proof is clearly excusable in the face of the trial court’s admonition about the eavesdropping statute, since even an offer of proof would have constituted a violation of the statute as the trial court viewed it and explained it to defense counsel.
This court’s decision is not supported by procedural shortcomings, and the court should, therefore, have considered whether denying defendant use of the tapes deprived him of constitutional rights.
If there was any evidence on the tapes helpful to the determination of the guilt or innocence of the defendant, their use is constitutionally mandated and cannot be blocked by the eavesdropping statute. The State relies on People v. Kurth (1966), 34 Ill.2d 387, 216 N.E.2d 154, which held that illegal tapes cannot be used by the State against a defendant in a criminal prosecution. In this case, the defendant was seeking to use the tapes in question in his defense.
The exclusion of the tapes because of a State statute preventing their use by one accused of crime as an aid to his defense deprives the accused of his constitutional rights of due process and to confront witnesses against him. By its interference with the effort of the defendant to contradict the testimony of his wife, the court denied the defendant his sixth amendment rights, even though the court was relying on Illinois statutes making the tapes which defendant was seeking to use or their recording or use illegal. In Davis v. Alaska (1974), 415 U.S. 308, a crucial prosecution witness was shielded by a protective order prohibiting any reference in cross-examination to his juvenile record. The protective order was granted on the basis of a State statute rendering juvenile records inadmissible in nonjuvenile courts. The Supreme Court held that the interest of the State in protecting the anonymity of juvenile offenders is subservient to the sixth amendment right to full and effective cross-examination of a witness, and that the State courts erred in concluding that the cross-examination as limited by the protective order was adequate. Similarly, the right of a defendant to confront a witness against him with adequate cross-examination overrides the interest of the State in providing protection against eavesdropping.
When, as in United States v. Nixon (1974), 418 U.S. 683, 707-712, the legitimate needs of the fair administration of criminal justice are held to outweigh even a presidential privilege, a State statute designed to prohibit eavesdropping cannot be used by a trial court to shield conversations which may on cross-examination impeach a prosecution witness or establish the defendant’s innocence.
Fairness and justice require that one accused of criminal conduct be afforded the opportunity without interference by the court to use any evidence which is proper and may tend to show his innocence. The tapes were proper. Whether they were helpful, this court cannot determine because of their swift disappearance from the trial arena. I would, therefore, remand the case for in camera hearing to determine their relevance for purposes of impeachment. This is the procedure the trial court should have adopted when the tapes were presented even though defendant’s counsel did not formally move for such a hearing. The suggestion that such a hearing be conducted was implicit, however, in counsel’s statement that he was tendering the tapes to the State’s Attorney so that he could listen to them. The next step in orderly trial procedure would have been an in camera hearing upon the State interposing any objection to their use.
If at the in camera hearing it developed that the tapes were relevant, the defendant would then be entitled to a new trial.
Ill. Rev. Stat. 1973, ch. 38, § 14—2(b), provides:
“A person commits eavesdropping when he:
(b) Uses or divulges, except in a criminal proceeding, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.”