(dissenting). The majority today reaches the conclusion that the exceptions contained in MCL 600.2162; MSA 27A.2162 do not apply to communications between spouses.
Preservation of marital harmony becomes mere rubric where one spouse is willing to testify against another in the circumstances described in the statute. Worse, it is a cruel and demeaning fiction justified by no purpose other than to promote the interest of the adverse spouse and having no effect save, as in this case, to obstruct the fact-finding process and to remind us that even in 1989 we are all not equal before the law.
Revised Judicature Act § 2162 should be construed so as to find the privilege inapplicable to the exceptions because the purpose of the statute was to remove common-law disability; the general public policy of this state is to accord married women full equality before the law, subject only to policy interests deemed paramount by the Legisla*181ture; and, where one of the situations listed in the statute has occurred, damage has been done to the marital relationship far more shocking than revealing a communication. In these situations, the Legislature has determined that protection of marital privacy is a less important societal interest than the right to testify fully as to a violation of civil or criminal rights.
As long ago as 1884, in the context of interpreting the predecessor statute which provided for an exception in cases of an action between spouses involving the title to separate property, this Court held that the exception applied to the privilege. The Court found that the identical words we consider today, "[N]or shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other, during the marriage,” allowed a wife to testify as to promises made to her in the privacy of their chamber and with no one else present. In words equally applicable to this case, the Court stated:
[T]he statute removes the common-law disability and permits either to testify to the facts which lie at the foundation of the ownership of the property as fully as if such marriage relation did not exist. The clause of the statute prohibiting either, during marriage or afterwards, without the consent of both, being examined as to any communication made by one to the other during the marriage, does not apply to cases of this kind.
No doubt society is interested in preserving the harmony of the marriage relations and anything which tends to disrupt those relations is to be discountenanced. The Constitution has secured to a married woman the right of acquisition, enjoyment and disposition of her separate property, and *182the Legislature has given her the same standing in the courts with respect thereto as if she were unmarried; and there is no good reason why she should not have the means of protecting those rights as fully against her husband as against any other person. ... So far as the destruction of harmony in the family circle is concerned, the injury is inflicted when the husband or wife fail[s] to keep their agreements . . ., and the strife and bickerings consequent thereon long precede the shock caused by permitting the party to testify respecting the title to such property. [Hunt v Eaton, 55 Mich 362, 365-366; 21 NW 429 (1884). Emphasis added.]
The majority dismisses the decision in Hunt as based not on the application of the exceptions to the communications privilege but, rather, on the idea that the statements involved were not confidential since they involved business transactions. This interpretation ignores the fact that the Court clearly concluded in Hunt that the communications privilege simply did not apply to "cases of this kind,” and that "[t]o hold that it did would nullify in a great measure the language which precedes it and make a limitation upon the exception where in my opinion none was intended.” Id., p 366. Indeed, the majority in this case, by arguing that the communication in Hunt was not confidential, apparently chooses to ignore the statement by Justice Champlin that he did "not consider it necessary to indicate the nature of the communications between husband and wife about which neither is allowed to be examined . . . .” Id.
In 1887, in interpreting an amendment to the statute which excepted cases "where the cause of action grows out of a personal wrong or injury done by one to the other,” 1885 PA 211, the Court said:
*183Not only the ends of justice, but public policy alike, require that she should be at liberty to complain and prosecute as if she were a feme sole in criminal cases. The law will not allow the marriage relation to be so used as to protect the criminal, or shield him from the just penalty for his crime.
Thus it will be seen that it is the policy of the law to extend the right of the wife to bear testimony against the husband in cases of violation of her personal rights,- rather than to restrict it. [People v Sebring, 66 Mich 705, 707; 33 NW 808 (1887).]
Despite these venerable statements of policy regarding the purpose of the statute and the express holding that the communications privilege did not apply to the statutory exception, the majority concludes that our Legislature, in enacting the Revised Judicature Act in 1961, intended to permit a defendant spouse to silence his wife in the situations excepted by the statute. Surely a contemporary Legislature was as cognizant of the notion "that there is no good reason why she should not have the means of protecting [her] rights as fully against her husband as against any other person” and that the injury to the marital relationship is done when the "personal wrong or injury” (or "crime committed against the children of either or both”) occurs. MCL 600.2162; MSA 27A.2162.
To presume a sunset of enlightenment in a Legislature that has repeatedly demonstrated a commitment to a woman as "feme sole” in a legal *184matter is to ignore history.1 I cannot agree that the Legislature intended to reimpose the common-law disability and prevent a willing2 witness, usually a woman, from "testifying] ... as fully as if such marriage relation did not exist.”
Despite prior precedent, sound public policy, and simple justice, the majority holds that, for want of a semicolon, the Legislature intended to deprive this mother of the right to testify as to her husband’s admission to sexual contact with her daughter. I disagree and would reverse the decision of the Court of Appeals.
i
The marital privileges can be traced to the period of our history when a woman, possessing no legal identity of her own, was treated as the chattel of her husband. The unity of identity between a husband and wife affirmed and advanced these cultural perceptions. Consequently, two canons of medieval jurisprudence came into play.
[F]irst, the rule that an accused was not permitted to testify in his own behalf because of his interest in the proceeding; second, the concept that husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one. From those two now long-abandoned doctrines, it followed that what was inadmissible from the lips of the defendant-husband was also inadmissible from his wife. *185[Trammel v United States, 445 US 40, 44; 100 S Ct 906; 63 L Ed 2d 186 (1980).]
Quite simply, a wife was disqualified from testifying against her husband.3 This practice later became a gender-neutral rule of exclusion. When this general rule of disqualification fell into disfavor, it was replaced by a privilege to exclude spousal testimony. Id. See Developments in the law, privileged communications, 98 Harv L R 1450, 1563-1565 (1985). With the passage of 1861 PA 125, Michigan codified the rule of conditional competency or spousal bar and enacted a separate privilege protecting from disclosure at a judicial proceeding all confidential communications between spouses made during the marriage.4 Thus, the term marital privilege refers to two distinct privileges: the right to bar the spouse from testifying *186and the right to prevent the spouse from revealing confidential communications.
The privilege to bar the testimony of a spouse is defended on the basis that it prevents marital discord. It is an offshoot of the rule of incompetency. People v Love, 425 Mich 691, 700; 391 NW2d 738 (1986) (opinion of Cavanagh, J.). The confidential communications privilege is said to inspire marital confidences. McCormick, Evidence (3d ed), § 86, p 201. Over time, case law has blurred the justifications, and it is sometimes observed that the validity of both privileges rests on the utilitarian ground of promoting marital harmony.5 See Privileged communications, supra, pp 1578-1579; Love, supra, p 711, n 1 (opinion of Boyle, J.).
Criticism of both marital privileges centers on the fact that they conflict with the jurisprudential objective of advancing the truth-finding function. *187As Professor McCormick observes, "while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony is at best doubtful and marginal.” McCormick, supra, § 86, p 202. Thus, even at common law the spousal bar was withheld from the husband in prosecutions for wrongs directly against the wife.6 Similarly, when in this country statutes were enacted providing for the privilege for confidential communications, an exception to the confidential communication privilege was incorporated and frequently extended in cases involving wrongs against a spouse, particularly those of a violent nature.
As Professor McCormick explains:
The common law privilege against adverse testimony of a spouse was subject to an exception in cases of prosecution of the husband for offenses against the wife, at least those of violence. When nineteenth century statutes in this country limited and regulated this privilege and the incompetency of spouses as witnesses and defined the new statutory privilege for confidential communications the common law exception above mentioned was usually incorporated and extended, and frequently other exceptions were added. Under these statutes it is not always clear how far the exceptions are intended to apply only to the provisions limiting the competency of the spouses as witnesses, or whether they apply also to the privilege for confidential communications. Frequently, however, in the absence of a contrary decision, it is at least arguable that the exception does have this latter application, and in some instances this intent is clearly expressed. Any other result would, in principle, indeed be difficult to justify. [McCormick, supra, § 84, pp 198-199. Emphasis added.]
*188This Court also has recognized that the marital privileges stand contrary to the maxim "the public has a right to every man’s evidence . . . Love, supra, p 712 (opinion of Boyle, J.); 8 Wigmore, Evidence (McNaughton rev), § 2192, p 70. Therefore we have consistently recognized that privileges
must be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” [Love, supra, pp 700-701 (opinion of Cavanagh, J.); p 712 (opinion of Boyle, J.); see also O’Toole v Ohio German Fire Ins Co, 159 Mich 187, 193; 123 NW 795 (1909).]
A
The majority’s construction of the statute is that the statute is unambiguous and that the exceptions to the privilege to bar a spouse’s testimony do not apply to confidential communications. One spouse may now apparently permanently prevent another from testifying to a confidential communication in a civil proceeding in which the spouses are adverse parties (such as "suits for divorces,” and cases involving the title to the separate property of the husband or wife, in cases of "crime[s] committed against the children of either or both,” and to those cases "where the cause of action grows out of a personal wrong or injury done by one to the other”).
This analysis requires us to conclude that our Legislature does not extend even the common-law exception for crimes of violence against a spouse to *189confidential communications. I am unwilling to ascribe such an intent to our Legislature.7
As the majority interprets the Legislature’s intent, a wife is allowed to testify at her husband’s trial for the sexual abuse of her daughter, but the exception does not extend to permit her testimony concerning his admission of the assault. Thus, on the retrial ordered today, the jury will not be allowed to learn of the defendant’s explanation to his wife as to why this assault occurred and will be required to resolve this issue on the basis of the testimony of a child who was eight years old at the time of the alleged occurrence.
Assuming that the Legislature created marital privileges to promote marital harmony and marital privacy, I cannot agree that the Legislature that enacted this statute in 1961 found these interests so paramount as to bar all relevant proof that involves a private communication between spouses. To do so would leave women and their children without the means of protecting their rights "as fully against her husband as against any other person.” Hunt v Eaton, supra, p 366.
As Professor Wigmore observed in discussing the common-law exception to the spousal bar:
[I]f the promotion of marital peace, and the apprehension of marital dissension, are the ultimate ground of the privilege, it is an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, *190any such peace, would it be a peace such as the law could desire to protect? [8 Wigmore, supra, § 2239, p 243.]
B
A literal reading of the act appears to support the majority’s result. However, the statute is ambiguous and this reading is not consistent with this Court’s holding in Hunt v Eaton, supra, with the accepted axiom that "privileges should be narrowly defined and exceptions thereto broadly construed,” People v Love, supra, p 700, nor with the long-established and recognized policy of the law "to extend the right of the wife to bear testimony against the husband . . . rather than to restrict it,” People v Sebring, supra, p 707.
After no less than seventeen amendments and reenactment of the marriage privileges spanning nearly one hundred and fifty years of legislative action and despite these well-established guides to construction, the majority rejects Justice Champlin’s statement that the "statute removes the common-law disability and permits either to testify ... as fully as if such marriage relationship did not exist,” on the basis of the punctuation in the statute. Hunt v Eaton, supra, p 365.
When amended in 1869, the passage dealing with the spousal bar was split with a semicolon, and that clause was separated from the newly added property title exception by a comma:
A husband shall not be examined as a witness, for or against his wife, without her consent; nor a wife, for or against her husband, without his consent, except in cases .... [1869 PA 84.]
That manner of punctuation is maintained in the present statute.
*191If we are to assume, as does the majority, that the Legislature intended this semicolon as a definite demarcation, we must also conclude that the exceptions apply only in the instance where a wife is asked to testify for or against her husband, but not when a husband is asked to testify for or against his wife. Of course, such a conclusion is wholly unjustified.
Furthermore, if the grammar and punctuation of § 2162 is as indicative of legislative intent as the majority believes, the significance of 1897 PA 212 should not be overlooked. Public Act 212 provided:
That a husband may testify for or against his wife without her consent, and a wife may testify for or against her husband without his consent, in all criminal prosecutions, for bigamy: Provided, however, That nothing herein contained shall be so construed as to permit a husband or wife to testify against the other without the consent of both concerning any communications made by one to the other during the marriage.
All acts or parts of acts conflicting with the provisions of this act are hereby repealed. [Emphasis omitted.]
When this exception for bigamy prosecutions was incorporated into the general privilege statute in 1915 PA 314, ch XVII, § 67, the express proviso precluding spousal testimony concerning confidential communications was eliminated. Had the Legislature intended the exceptions listed in the act to apply only to the spousal testimonial privilege, the proviso emphasizing that intent should have survived. In the absence of the proviso, the logical conclusion to draw is that the Legislature intended the exceptions to apply to both privileges. The majority, in effect, reads a proviso into the act where none exists and draws a contrary conclu*192sion. In this manner, the majority finds that the "clear and unambiguous” nature of § 2162 both commands the opposite result and forecloses a reasoned explanation of legislative purpose.
c
The justification for the communication privilege is to protect marital harmony and encourage marital communication. Each exception in the statute represents an instance where the Legislature has balanced the interest in marital harmony against a competing and overriding interest in fully vindicating the witness or party spouse’s rights. The majority focuses on the Legislature’s purpose in 1861 and assumes that today one spouse is permitted to completely silence the other to uphold the integrity of marital confidences. Justice Levin’s opinion, ante, pp 179-180. The proper focus, in my view, should be on the Legislature’s purpose in 1961 when it recognized that in certain instances, such as civil cases in which the spouses are adversaries, cases involving harm to a child of either or both, or those in which a personal wrong or injury is done by one spouse to another, the privilege must yield to the need for probative evidence8 in order to vindicate the rights in controversy.9
ii
Even if the exceptions listed in §2162 do not *193apply to the confidential communication privilege, defendant Hamacher waived the privilege when he failed to object to his wife’s testimony at his preliminary examination.10 This Court has long recognized that the communication privilege "is the privilege of the parties . . . and may be waived.” O’Toole, supra, p 192; Benson v Morgan, 50 Mich 77, 79; 14 NW 705 (1883).11 Such waiver may be express or implied. 8 Wigmore, supra, § 2340, pp 671-672. Implied waiver was found in Benson v Morgan, supra, where a husband who was present in court failed to object when his wife was called to testify against him. Similarly, in People v Toner, 217 Mich 640, 643-644; 187 NW 386 (1922), this Court concluded that when a defendant calls his wife as a witness in his defense, the marital privileges are waived as to all pertinent facts, and cross-examination need not be limited to facts elicited on direct examination. Here the defendant did not call his wife as a witness, but he did fail to object to her testimony at the preliminary examination. I would conclude that the defendant’s failure to assert the spousal privilege at that examination operated as a general waiver of the privilege.
Once waived, a privilege may not be reasserted by a defendant at a later stage of the same proceeding or at any subsequent judicial proceeding.12 As Professor Wigmore states:
*194A waiver at a former trial should bar a claim of the [physician-patient] privilege at a later trial, for the original disclosure takes away once and for all the confidentiality sought to be protected by the privilege. To enforce it thereafter is to seek to preserve a privacy which exists in legal fiction only. [8 Wigmore, supra, §2389(4), pp 860-861. Emphasis in the original.]
I see no reason to conclude that this rule should not apply equally to former proceedings in the same trial as well as to former trials.13 Thus, a failure by the holder to assert the privilege by objection at the preliminary examination in the same case is a waiver of the privilege.14
The confidential communication privilege acts to hold inviolate the privacy of the marital relationship. When facts which might otherwise be privileged are disclosed for all to inspect, the purpose of the privilege is destroyed. Just as one cannot unring a bell, a secret once disclosed in open court is never again a wholly private matter.15
*195hi
Finally, even if it was error to admit the testi*196mony, the defendant’s wife would be considered unavailable as a witness due to defendant’s assertion of the spousal privilege.16 As such, her testimony at the preliminary examination, to which defendant failed to object, should be received under MRE 804(b)(1), which provides an exception to the hearsay rule for "[testimony given as a witness at another hearing of the same or a different proceeding . . . .”
This Court has recognized the admissibility of such prior testimony even though testimony at trial was precluded by defendant’s assertion of the spousal privilege. For example, in People v Love, supra, p 708, Justice Cavanagh indicated that if the witness spouse "voluntarily testified at the [preliminary] examination, her recorded testimony wofild have been admissible at trial as substantive evidence pursuant to MRE 804(b)(1),” even though she had been precluded from testifying at trial because of the spousal privilege. (Opinion of Cavanagh, J., with Levin, J., concurring.) See also People v Whalen, 129 Mich App 732, 738; 342 NW2d 917 (1983) ("Consequently, ... if the spouse testified at the preliminary examination . . . while *197married to the defendant and the marital privilege was not properly asserted, the preliminary examination testimony is admissible at trial when the marital privilege is asserted by the defendant”).
CONCLUSION
The Court of Appeals erred in reversing the conviction because the exceptions listed in § 2162, more specifically the exception concerning crimes against the children of either or both, apply to the communications privilege.
Riley, C.J., and Griffin, J., concurred with Boyle, J.In 1974, the Legislature acted to permit sexual assault prosecutions against a spouse where the parties were living apart and one or the other had filed for separate maintenance or divorce, MCL 750.5201; MSA 28.788(12); it now has permitted,such actions between legally married spouses, without limitation, 1988 PA 138.
The exceptions permit a willing spouse to testify against the other spouse. People v Love, 425 Mich 691; 391 NW2d 738 (1986). They do not require such testimony.
Early Michigan statutes contained such a form of spousal disqualification. See 1857 CL 4339:
No person shall be excluded from giving evidence in any matter, suit or proceeding, civil or criminal, by reason of crime, or of any interest of such person in the matter in question, or in the event of the suit or proceeding in which his testimony may be offered, unless such person be individually a party, named in the record, to such matter, suit or proceeding, or unless such matter, suit or proceeding be prosecuted or defended, either wholly or in part, in the immediate and individual behalf of such person, or unless such person be the husband or wife of such party; but when such person is a party, he may be a witness under the rules prescribed by statute. [Emphasis added.]
See 1861 PA 125, § 4342:
A husband shall not be examined as a witness for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor shall either, during the marriage or afterwards, be, without the consent of both, examined as to any communication made by one to the other during the marriage; but in any action or proceedings instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.
In addition to this often quoted justification, one commentator has identified' three additional grounds for the continued life of the marital privileges. The privileges are sometimes said to promote individual rights by allowing the protection of the right to privacy. The contempt power of the court is viewed as an intrusive force, and one spouse is allowed to shield the other from having to choose between loyalty to the state and loyalty to one’s spouse. This view is criticized by those who would observe that in such a case the privilege is better vested with the witness because too often valuable evidence is lost when one spouse would voluntarily testify against the other.
Similarly, the marital privileges are justified on the ground that by avoiding the situation whereby a court is forced to compel one spouse to testify against the other, the public’s perception of the judicial system is enhanced. Critics respond, however, that this argument assumes popular awareness of the law and could work to denigrate the public’s perception of the system when a defendant-spouse avoids prosecution by preventing a willing spouse from testifying.
A final explanation of the privileges is that they perpetuate the role of male domination in the marriage. It is claimed that because the privileges are more often invoked by a husband to bar the testimony of his wife, the privileges will benefit men more often than women and will serve to legitimize and solidify social perceptions of the marriage status quo and reinforce the subordinate view of women historically rooted in the male domination of the marital relationship. This view assumes popular knowledge of the marital privilege.
8 Wigmore, Evidence (McNaughton rev), § 2239, pp 243-247.
Specifically, § 2162 excepts cases of divorce, bigamy, crimes against the children of either or both, personal wrong or injury done by one to the other, failure of spousal or child support, desertion and abandonment, and certain cases dealing with disputes over the title to property.
Various statutes are in accord. See California Evidence Code, § 985, 13A ULA 504, providing for exceptions to the confidential communication privilege for crimes committed against a child of either spouse. See McCormick, supra, § 78, p 189, n 10,190, n 16.
In light of the fact that this Court in Love declined the invitation to abrogate § 2162 pursuant to our rule-making authority, there appears to be no barrier to legislative consideration of the policy issue as to whether and when the exceptions contained in § 2162 apply to the confidential communications privilege or to adoption of the view in Trammel which vested the privilege in the witness spouse, MRE 501.
See anno: Claim of privilege by a witness as justifying the use in criminal case of bis testimony given on a former trial or preliminary examination, 45 ALR2d 1354, § 3, pp 1355-1359; anno: Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 ALR2d 1404.
See 8 Wigmore, Evidence, § 2340, p 671, "The spouse possessing the privilege may of course waive it.” (Emphasis in the original.) For it is "the essence of the . . . privilege (as of every privilege) that it may be waived.” Id., § 2334, p 645.
See, generally, State v Clark, 296 NW2d 372, 373 (Minn, 1980); *194Fraser v United States, 145 F2d 139, 145 (CA 6, 1944), cert den 324 US 849 (1944).
At least one other court has indicated that the rule does extend to other proceedings:
However, once the privilege is waived, the confidentiality sought to be protected is merely a legal fiction. We therefore hold that, once waived, whether at a former trial or otherwise, a patient cannot reassert his or her privilege. [State v Mincey, 141 Ariz 425, 439; 687 P2d 1180 (1984). Emphasis added.]
See also In re Postley, 125 Misc 2d 416, 417; 479 NYS2d 464 (1984) ("Once waived, the privilege is waived for 'all time,’ the statutory seal of secrecy having been broken”); People v Lowe, 96 Misc 2d 33; 408 NYS2d 873 (1978) (pretrial disclosure at a preliminary hearing waived the privilege regarding inquiry); General American Life Ins Co v Ettinger, 266 AD 876; 42 NYS2d 836 (1943) (waiver of the privilege in a separate action operates as a waiver in a subsequent proceeding); People v Bloom, 193 NY 1; 85 NE 824 (1908).
This Court has discussed this issue once before, although not as the basis of a decision. In Briesenmeister v Knights of Pythias, 81 *195Mich 525, 534-535; 45 NW 977 (1890), this Court stated, in dictum, that a privilege waived in a prior proceeding may be reasserted in a subsequent proceeding. Briesenmeister relied upon Grattan v Metropolitan Life Ins Co, 92 NY 274; 44 AR 372 (1883), which had already been overruled by McKinney v Grand Street, PP & F R Co, 104 NY 352; 10 NE 544 (1887). It was perhaps overly generous of the Briesenmeister Court to characterize Grattan as "overruled” in that the recapture of privilege theory mentioned in Grattan was merely an alternative ground for the court’s conclusion that the evidence was admissible. As the Grattan court initially explained:
[T]he evidence was inadmissible for two reasons. What the witness testified to on a former trial, he being living and present for examination on the second trial, could only be proved for the purpose of contradicting him or of refreshing his memory. No emergency of that kind existed to justify proof. [Id., p 287.]
As the McKinney court later acknowledged, no authority was provided in Grattan for the alternative ground of privilege by which the evidence was excluded.
Furthermore, Briesenmeister, like Grattan, involved the testimony of the treating physician of the deceased in an action upon a life insurance policy in which the insurer claimed forfeiture by fraudulent statement of health on the part of the insured. The error alleged in Briesenmeister was the exclusion of certain evidence alleged to be privileged only after its admission. The Court agreed that the trial court erred in striking at least portions of the testimony, given that the objection was late, and reversed for a new trial. However, the Briesenmeister Court suggested that the privilege might be reasserted at the new trial.
In my view, Briesenmeister does not control in this case. Given the substantial changes in this reasoning behind the continued existence of statutory privileges such as the spousal bar in the nearly one hundred years since Briesenmeister was decided, the fact that the Court’s discussion in that case of the recapture of a privilege was clearly dictum and the lack of authority for its conclusion, I find Briesenmeister unpersuasive. To the extent that Briesenmeister has any precedential value, it is narrow indeed and has no application on these facts.
The two cases cited by Justice Levin in his separate opinion, Burgess v Sims Drug Co, 114 Iowa 275; 86 NW 307 (1901), and Maryland Casualty Co v Maloney, 119 Ark 434; 178 SW 387 (1915), do stand for the proposition that a waiver does not necessarily preclude reassertion of a privilege at a subsequent proceeding. However, I question their dispositiveness in light of the fact that the great weight of more recent authority supports the opposite conclusion. See, e.g., Cerro Gordo Charity v Fireman’s Fund American Life Ins, 819 F2d 1471 (CA 8, 1987); State v Bishop, 187 NJ Super 187; 435 A2d 1365 (1982); State v Mincey, supra.
The majority reaches the conclusion that the prosecution waived the waiver argument as well as the prosecution’s alternative argument that defendant’s wife’s prior recorded testimony at the preliminary examination would have been admissible under MRE 804(b)(1) had she been precluded from testifying at trial by defendant’s invocation of the spousal privilege, since she would then have to be deemed unavailable as a witness. MRE 804(a)(1) defines "unavailability as a witness” to include situations in which the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of [the] statement . . . .”
I would conclude that the prosecution is not precluded from advancing either argument by its failure to assert that argument prior to filing its brief with this Court. Prior to the decision of the Court of Appeals on remand, the prosecution, as appellee, was not required to present any particular arguments in support of the prior decisions in its favor. Only when it became the appellant before this Court was it required to raise such arguments which it has, in fact, done.