(concurring in part and dissenting in part). I concur with the majority disposition of the sentencing guideline issue; this Court did not confer a substantive right upon a defendant to receive a sentence under a particular guideline. I write separately, however, because I cannot agree with the majority’s result-oriented disposition of the marital communication privilege1 issue.
In my view, if the police officer’s written testimony at sentencing concerned confidential marital communications, then the privilege applies whether or not Ms. Fisher testified. If the marital communication privilege applies, the police officer’s testimony also should be barred. See People v Salisbury, 218 Mich 529, 535; 188 NW 340 (1922) ("cross-examination is restricted as to other witnesses when the answers would reveal confidential communications, the divulgence of which is prohibited by statute”). It is irrelevant that hearsay is admissible at sentencing pursuant to MRE 1101(b)(3) because only "hearsay that does not fall within the protection of an established privilege, may be *584included in presentence reports.”2 Griffin, J., ante, pp 576-577.
i
This Court has interpreted the privilege statute to encompass two distinct privileges. The first, the spousal privilege, prevents a defendant’s spouse from testifying in court without the defendant’s consent. The second, the marital communication privilege, prevents a defendant and the defendant’s spouse3 from disclosing confidential marital communications at judicial proceedings, unless both spouses consent. People v Hamacher, 432 Mich 157, 161; 438 NW2d 43 (1989). This case involves the marital communication privilege.
The marital communication privilege is "a rule of public policy; the privilege being the privilege of the spouse making the communication, the lips of both being sealed, unless both, otherwise, personally consent.” Sweikhart v Hanrahan, 184 Mich 201, 207; 150 NW 833 (1915). (Emphasis added.) It has been said that " '[t]he exclusion of such communications when made in confidence between persons occupying the intimate relation of husband and wife is predicated on the necessity of fostering such relation and the greater injury *585likely to result from permitting their disclosure than the benefit to be gained thereby/ ” People v Ignofo, 315 Mich 626, 638; 24 NW2d 514 (1946) (quoting Salisbury at 532).
The marital communication privilege also applies at sentence proceedings. Although the statute itself neither limits nor expressly provides for application of the privilege rule to sentencing, MRE 1101(b)(3) certainly does:
(b) Rules Inapplicable. The rules other than those with respect to privileges do not apply in the following situations and proceedings:
(3) Miscellaneous Proceedings. Proceedings for . . . sentencing .... [Emphasis added.]
II
The problem raised here is that Ms. Fisher disclosed to a police officer confidential marital communications made by her husband, the defendant. The police officer then included the statements in Mr. Fisher’s presentence report, which was considered at sentencing. The prosecutor argues that such use was appropriate because hearsay is admissible at sentencing. MRE 1101(b)(3). If the statements are barred by the marital communication privilege, however, the police officer’s testimony also should be inadmissible.4
The majority dismisses this problem by holding, *586"[b]ecause . . . the marital communications privilege is a testimonial privilege that is limited to those situations in which a spouse is being 'examined’ in court proceedings with regard to the communications, the three hearsay statements that in this case were written[5] into the presentence report were properly considered by the sentencing court.” Griffin, J., ante, p 576. In effect, the majority allows circumvention of the marital communication privilege and MRE 1101(b)(3),6 by allowing evidence indirectly that is prohibited directly, a ploy this Court long has forbidden.7
Aside from erroneously concluding that the spouse must testify for the privilege to apply, the majority does recognize that MRE 1101(b)(3) "certainly contemplates that hearsay that does not fall within the protection of an established privilege, may be included in presentence reports.” Griffin, J., ante, pp 576-577. Logically, the inverse should *587also be true. Hearsay that falls within the protection of an established privilege may not be included in presentence reports.
The hearsay statements here are the confidential marital communications defendant made to his wife. If the statements are protected by the marital communication privilege then both spouses are barred from testifying regarding the statements. To give meaningful effect to that requirement, it must follow that "cross-examination is restricted as to other witnesses when the answers would reveal confidential communications, the divulgence of which is prohibited by statute.” Salisbury at 535.8 Consequently, the police officer’s testimony here would be inadmissible. The majority attempts to elude this prohibition by holding that the privilege does not apply because the spouse was not called to the stand or examined about confidential marital communications.
in
I suggest there is no rational or legal basis for the majority’s conclusion that the defendant’s spouse must be called to testify for the marital communication privilege to apply.9 First, putting *588the spouse on the stand is not a requirement for a communication to fall within the protection of the marital communication privilege.10 Second, and more importantly, under the spousal privilege the defendant’s spouse cannot take the stand unless the defendant first consents. Under the marital communication privilege, both spouses may testify, but both must consent before either can be examined regarding confidential marital communications. Therefore, the prosecutor "could not call defendant’s” spouse to the stand because he was prohibited by statute. Ignofo at 640. Consequently, the majority’s analysis is seriously flawed.11
Even if the defendant consented to his spouse taking the stand, "[t]here is no question but that the wife of defendant could not be asked to disclose such communications,” unless the marital communication privilege also is waived. Id. at 639 (quoting, Salisbury at 535). The distinction between the consent required to waive each privilege further demonstrates that the focus of the marital communication privilege is on prohibiting disclosure of confidential marital communications in court, absent consent.12
*589The majority’s conclusion eliminates the right of both spouses to consent before either may disclose confidential marital communications. If confidential marital communications are admissible because neither spouse testifies, but one spouse discloses the statements to a police officer, who then testifies regarding those statements, then the consent requirement would be pointless. That result is contrary to this Court’s responsibility to interpret statutes to avoid rendering any provision meaningless. See Girard v Wagenmaker, 437 Mich 231, 238; 470 NW2d 372 (1991) (the Court "must still give the statute a valid and reasonable construction that will reconcile any inconsistencies and give effect to all its parts”).13
Consider the implications of the majority’s rule. The police interrogate a defendant’s spouse, who, under the heat of the lights and the pressure of the officers, discloses otherwise confidential marital communications. Even if the spouse refuses to testify in court regarding the communications, the police can testify because the majority holds that if the spouse does not testify, the privilege doés not apply.
Besides eroding the consent requirement, the majority rule renders the marital communication privilege virtually nonexistent at sentencing, thus overruling MRE 1101(b)(3). If the privilege does not apply because the spouse does not take the stand, then confidential marital communications could be disclosed to third persons who may testify at sentencing despite the otherwise applicability of the privilege. In order for the privilege to apply after today, the defendant would have to call the *590spouse to the stand, since it is doubtful the prosecutor will. In effect, defendant is forced to consent to his spouse taking the stand and being examined regarding confidential marital communications. It seems odd that the defendant would have to consent, and then moments later object to the same questions being asked in order to invoke the privilege. Such a rule is imprudent because it renders the marital communication privilege unworkable, and it impedes the privilege’s purpose. Although some of my colleagues have advocated eliminating the marital communication privilege altogether, until it is eliminated, this Court must continue to interpret and apply the privilege in a meaningful manner as it is written. This, is to say, testimony regarding confidential marital communications is not to be admitted in court, absent consent or an applicable exception.
IV
The cases on which the majority relies really do not bear close scrutiny. The marital communication privilege was not an issue in People v Williams, 181 Mich App 551; 450 NW2d 85 (1989), which only involved the spousal privilege. Similarly, People v Burton, 177 Mich App 358; 441 NW2d 87 (1989), does not involve the marital communication privilege, and the statements at issue in People v DeWitt, 173 Mich App 261; 433 NW2d 325 (1988), were not confidential marital communications.14
Williams, nonetheless, warrants further explica*591tion. In Williams, the defendant allegedly shot her tenant. The defendant’s husband immédiately called for emergency assistance and reported that a " 'woman just shot her tenant.’ ” The defendant’s husband was prohibited from testifying in court against15 the defendant without the defendant’s consent. The Williams Court concluded, however, that the statement to the 911 operator itself is not protected by the spousal privilege; therefore, the 911 operator could testify regarding the statement "if indeed the court determined that a hearsay exception applied . . . .” Id. at 554. I agree with that holding because the spousal privilege bars the spouse from testifying, but does not purport to preclude any specific category of testimony. If the defendant had consented to her husband taking the stand, he could have testified about his statement to the 911 operator, if such testimony otherwise is admissible.
If the husband’s statement was a confidential marital communication, however, the outcome in Williams would be different. For example, assume that the defendant consented to her husband taking the stand, and, while testifying, the prosecutor attempted to question the husband regarding confidential marital communications. Because both parties must consent to either spouse being examined in court regarding confidential marital communications, either the husband could refuse to answer the question, or the defendant could prevent him from answering, by invoking the marital communication privilege. Thus, the marital communication privilege does not prevent the spouse from taking the stand, but does specifically prohibit certain *592testimony from being disclosed without both spouses’ consent. Therefore, the marital communication privilege protects the statement itself. Consequently, the third party to whom the statement later is disclosed also should be prohibited from disclosing the statement in court. Holding otherwise thwarts the purpose of the privilege.
In holding that the marital communication privilege is testimonial only, the majority also relies on Justice Levin’s separate opinion in Hamacher, in which he explained:
Hamacher’s wife, without violating §2162, related the statement she attributed to her husband to social service workers, police officers, the prosecutor, and could have done so to newspaper and other reporters. She could indeed have gone on the nightly news and made a full statement of the confidential communication without violating §2162. The "secret” would then no longer have been secret and "never again a wholly private matter.” Nevertheless, there can be no doubt that despite the wide communication to the world at large of the "secret,” Hamacher’s wife could not, consistent with §2162, "be examined” in court with regard to the communication. [432 Mich 177. Emphasis added.]
The majority claims that Justice Levin concluded that the marital privilege statute only precludes testimony of the spouse. Although Justice Levin did say the purpose of the statute was to preclude "the spouse from 'be[ing] examined’ in court,” I do not read my colleague’s opinion so narrowly. Id. at 180.
Justice Levin merely was offering support for this Court’s decision in Breisenmeister v Knights of Pythias, 81 Mich 525; 45 NW 977 (1890), which involved the patient-physician communication *593privilege.16 In Breisenmeister, this Court interpreted the patient-physician privilege to "include[ ] both the security against publication, and the right to control the introduction in evidence, of such information or knowledge communicated to or possessed by the physician.” Id. at 535. The Court stressed that the "latter right exists although the former has ceased to be of any benefit.” Id. Thus, Justice Levin merely was reiterating the principle that even if the secret no longer exists, the privilege does.17
I think it is clear that the marital communication privilege, precludes more than just the spouse’s testimony. Inherent in Justice Levin’s conclusion is that any third party to whom the spouse discloses the confidential marital communication is prohibited from testifying in court regarding the communication. If others could testify it would have been unnecessary to argue that the privilege still exists, because the party could have brought in the communication through another witness. The majority ignores that this Court already has explained this principle:
The public may know; but shall the jury be *594permitted to receive and weigh testimony derived from a source which the law has put the seal of silence upon, unless released by the party who alone has the right to say whether that particular witness shall be the medium of conveying such knowledge to the jury? For instance, the party may have disclosed to a third person all that he has to his physician. Now, while his admissions may be proved in a proper manner by such third person, they cannot be proved by the physician against the objection of the party. The privilege conferred is that the physician shall not disclose or testify to those matters which the statute inhibits without the consent of the party to whom the privilege is extended .... [Id. at 535-536. Emphasis added.]
Significantly, this Court used the terms "disclose” and "testify.” A logical interpretation is that the Court said the physician may not "testify” or "disclose” the communication to ensure that the communication is not used in court by anyone to whom the physician discloses the communication.
Justice Boyle’s dissent in Hamacher also supports not allowing disclosure of confidential marital communications in court. Although Justice Boyle disagreed with the privilege altogether, she stated that 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.” Hamacher at 185. (Emphasis added.)
Justice Boyle explained that the two privileges involved "the right to bar the spouse from testifying and the right to prevent the spouse from revealing confidential communications.” Id. at 185-186. Recognizing that the spouse may testify under the marital communication privilege but still not *595"reveal” the communication indicates that the marital communication privilege involves something more than prohibiting spouses from testifying. Obviously, the court cannot prevent a spouse from telling the whole world, but the court can prevent the communication from being revealed at any time during judicial proceedings.
v
I would hold that because the privilege bars testimony regarding confidential marital communications at trial, whether or not the spouse testifies, and because privilege rules apply at sentencing, the same testimony is barred at sentencing. Once the communication falls within the marital communication privilege, it remains privileged and may not be admitted through a third party.18 I, therefore, agree with the Court of Appeals that the marital communication privilege bars the disclosure by the police officer at sentencing.
Finally, I concur with the majority’s decision to vacate the Court of Appeals order for resentencing under the first edition of the sentencing guidelines.
MCL 600.2162; MSA 27A.2162.
I agree with the principle that evidence not admissible at trial generally is admissible during sentencing; however, MRE 1101(b)(3) bars privileged information during sentencing. Consistent application of the privilege rule indicates that if the privilege bars the communication at trial, then it also bars the communication at sentencing.
The defendant was married during the trial, but divorced at the time of sentencing. Nonetheless, we reject the prosecutor’s argument that the communication is admissible because the marriage could not be saved. The marital communication privilege " 'contains no exception to the privilege regarding communications between a husband and wife where the husband and wife are separated or are in the process of obtaining a divorce.’ ” People v Hamacher, 432 Mich 157, 163; 438 NW2d 43 (1989). Testimony regarding the communication is not admissible in court "if it was made during the marriage.” People v Vermeulen, 432 Mich 32, 37-38; 438 NW2d 36 (1989).
It is obvious that neither the Legislature nor the court can prevent either spouse from breaching confidentiality. Nonetheless, the Legislature and the courts have developed the marital communication privilege and must have had a reason, such as, preventing the information from being disclosed in court. The statute would be meaningless if the wife could disclose the communication to a third party, and then the third party testifies at judicial proceedings regarding the communication.
The majority states that the statements were written into the presentence report. There is no distinction, in this case, between the police verbally testifying and the police writing the statements in the report.
This Court promulgated MRE 1101(b)(3) in the order of January 5, 1978. This Court still has "not undertaken a review of the statutory privileges . . . since the promulgation of the Michigan Rules of Evidence.” Vermeulen, n 3 supra at 37. MRE 1101(b)(3) demonstrates that when the Court adopted the rule, it had in mind ensuring that third parties, who did not witness the making of statements were not able to testify regarding confidential marital communications. Despite the fact that this Court promulgated MRE 1101(b)(3), the majority looks to other jurisdictions to support ignoring the rule’s clear mandate that privilege rules apply at sentencing. See Griffin, J., ante, pp 572-573.
The prosecutor may not attempt to admit evidence that otherwise is inadmissible. See, e.g., People v Ignofo, supra at 638-641; People v Salisbury, supra. In Salisbury, this Court stated that the “course pursued by the prosecuting attorney to which objection was made brought clearly before the jury the fact that defendant’s wife had made a statement in writing to him, in which she had said that defendant made the admissions which he as a witness denied. Counsel could not and did not seek to call the wife as a witness. In this indirect way he placed before the jury the fact, unsworn to, that such damaging admissions had been made by the defendant to her. That prejudice resulted therefrom cannot be doubted.” Id. at 533.
The Salisbury Court held that a defendant cannot be compelled to testify about confidential communications without the spouse’s consent even though the defendant volunteered to testify regarding other matters. The Court explained that the confidential nature of the communication barred use of the communication during judicial proceedings.
The majority states,
In other words, the spouse must testify for the privilege to apply. The introduction of the marital communication through other means is not precluded.
In the instaht case, the marital communications privilege is inapplicable because Mary Fisher was not called to testify either at trial or at the evidentiary hearing conducted by Judge McCauley. [Ante, p 575.]
*588Furthermore, the majority stresses that "at no time was Mary Fisher examined as a witness against her husband.” Ante at 576.
To invoke the marital communication privilege, the communication must be made during the marriage, Hamacher at 162, be intended to be confidential, and not be made in the presence of a third party. People v Rosa, 268 Mich 462, 464; 256 NW 483 (1934).
The spouse would not need to testify at sentencing because the majority allows the police to take her testimony out of court and use it at sentencing.
For example, under the spousal privilege an ex-spouse can testify without defendant’s consent and a spouse can testify with defendant’s consent. Nonetheless, the marital communication privilege in both situations allows the defendant to bar testimony regarding confidential marital communications. Similarly, the spouse can refuse to testify even if the defendant wants the spouse to disclose the confidential marital communications in court. The spouse also can prevent the defendant from disclosing confidential marital communications by refusing to consent. Salisbury at 536-537.
The majority decision also renders MRE 1101(b)(3) meaningless. Consistent with principles of statutory construction, this Court should interpret the Michigan Rules of Evidence, which it adopted, to avoid rendering any provision meaningless.
It should be pointed out that State v Minor, 188 Neb 23; 195 NW2d 155 (1972), does not involve the marital communication privilege, and, apparently, Nebraska did not have a rule similar to MRE 1101(b)(3) at the time the case was decided. For the same reason, the majority’s reliance on Trammel v United States, 445 US 40; 100 S Ct 906; 63 L Ed 2d 186 (1980), is mistaken.
Interestingly, the statute does not differentiate between admitting favorable or unfavorable testimony. Even if the testimony was favorable, both spouses must consent before either can be examined regarding a confidential marital communication or "communications.”
MCL 600.2157; MSA 27A.2157. The privilege statute provides:
[A] person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character ....
In Scripps v Foster, 41 Mich 742, 748; 3 NW 216 (1879), this Court held that the "object of the statute ... is to prevent the abuse of the confidential relation existing between the physician and his patient and is for the protection of the latter.”
Justice Levin was contrasting McKinney v Grand Street PP & F R Co, 104 NY 352; 10 NE 544 (1887), which held that once the information was communicated at trial and no objection was raised, there was no reason to enforce the privilege statute, because the information was no longer a secret. Justice Levin stated that the legislative intent was not to protect the secret, however. The legislative intent was to invoke the protection even if the communication no longer was secret.
This is not an expansion of the current privilege, but merely a reasonable interpretation that salvages some meaning for having the privilege.