dissenting.
While I agree with the result reached by the majority in case no. 41347, I respectfully dissent to the result reached in case no. 41194 (Division 3).
In Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971), the United States Supreme Court ruled that a statement made by a criminal defendant which was inadmissible because it violated Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), could nonetheless be used to impeach the defendant if he testified to the contrary at trial. In United States v. Havens, 446 U. S. 620 (100 SC 1912, 64 LE2d 559) (1980), the Court held that evidence illegally seized from a criminal defendant in violation of the Fourth Amendment and suppressed from the government’s case-in-chief could be used to impeach that defendant at trial. The Court held that the ends of the exclusionary rules of Miranda and the Fourth Amendment were “adequately implemented by denying the government the use of the challenged evidence to make out its case in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies [is] deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial.” 446 U. S. at 627. The Court noted that the shields provided by these exclusionary rules should not “be perverted into a license to use perjury *660by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” 401 U. S. at 226.
I recognize that in both Harris and Havens, the Supreme Court was dealing with judicially created exclusionary rules and was, therefore, free to fashion the limitations on these rules. I acknowledge that this court is here presented with a statute which, on its face, purports to exclude any use of evidence obtained in violation of OCGA § 16-11-62 in any court proceeding except, in the circumstances of this case, a trial of an offense under OCGA § 16-11-62. But, I also note the statute fails to directly deal with the question of use for impeachment purposes only. It is the function of this court under these circumstances to find the purpose and intent of the legislature in enacting this statute. Enfinger v. Intl. Indem. Co., 253 Ga. 185 (317 SE2d 816) (1984).
I would hold that in enacting OCGA § 16-11-62 the legislature intended to deter those who sought to invade the individual’s right to privacy. See Ga. L. 1967, pp. 844, 845, former Code Ann. § 26-2001, quoted in the majority opinion. In enacting OCGA § 16-11-67 the legislature effected an additional deterrent to those who sought to obtain evidence in violation of OCGA § 16-11-62. I do not believe, however, that the legislature intended for this latter deterrent to hinder the fact-finding process at trial, to the extent that one may testify freely and in conflict with prior statements without encountering efforts at impeachment by use of those prior statements. Supporting this conclusion is the fact that the legislature made available two specific remedies for the conduct proscribed in OCGA § 16-11-62: Criminal prosecution under that statute and suppression of the illegally obtained evidence in the case-in-chief of any other proceeding. Any additional deterrence to those who would violate OCGA § 16-11-62 by excluding the use of the evidence for impeachment purposes would be minimal, but the detrimental impact on the fact-finding process at trial if this exclusion is permitted could be significant. I am convinced that in balancing the need to find the truth at the trial of the issues, the legislature intended for the latter to prevail under these circumstances.
I would hold, therefore, that while the tape-recordings husband obtained in violation of OCGA § 16-11-62 may not be used in his case-in-chief, he may use them to impeach wife’s testimony at trial if she takes the stand and makes statements inconsistent with the tape-recorded conversations.
I am authorized to state that Presiding Justice Marshall joins in this dissent.