People v. Fisher

Levin, J.

(dissenting). Richard Erick Fisher was convicted of second-degree murder on evidence tending to show that he stabbed William Tappert with a hunting knife at the home of Mary Fisher, his estranged wife. At a sentencing hearing, a police detective, who interviewed Mary Fisher at *596the crime scene, testified that she told the detective that Fisher had asked her "to tell the police that Tappert had fallen into the knife.” That statement is also recited in the presentence report.

The Court of Appeals concluded that the detective’s testimony and the recital in the presentence report were evidence that Fisher had asked his estranged wife to lie to the police, and was barred by the marital communications privilege.1

The majority concludes that the marital communications privilege does not bar the introduction in evidence of the testimony of the detective or of a document, the presentence report, reporting what Fisher is said to have said to his wife because the privilege is limited to sworn testimony by a spouse in court. No decision of this Court supports this construction of this statutory privilege. What little authority there is in this jurisdiction indicates that the privilege is not limited to spousal testimony in court. The authorities in other jurisdictions overwhelmingly support the view that the privilege bars the introduction in evidence of marital communications through the testimony of a person who spoke to one of the spouses or in the form of a writing containing statements from one spouse to the other obtained through connivance or betrayal by the spouse from whom the writing was obtained.

Fisher was sentenced to serve a term of forty to sixty years in prison. On remand from the Court of Appeals, he was sentenced to serve a term of twenty-five to fifty years. Before resentencing, the *597judge conducted a sentencing hearing during the course of which three statements were admitted in evidence, over objection, through the testimony of the police detective. These statements were also recited in the presentence report.

The Court of Appeals did not find it necessary to consider whether the first of the three statements2 was privileged because the sentencing judge said he would not consider the first statement. Nor was it necessary for the Court of Appeals to consider the second statement because it was made in the presence of a third person, and thus was not a confidential communication protected by the privilege.

In imposing sentence on Fisher, the judge said that he considered the third statement, wherein Mary Fisher reported that Fisher had asked her to tell the police that Tappert had fallen into the knife.

The Court of Appeals concluded that the third statement, "which was a request by defendant to his estranged wife asking her to lie to the police, was barred by the confidential communications privilege. An element of confidentiality is implicit in a request to tell a lie.”3

*598II

The marital communication privilege is statutory. It bars either spouse, during or after the marriage, from being "examined,” without the consent of both, concerning any communication made by one to the other during the marriage.4

In People v Bowen, 165 Mich 231, 237; 130 NW 706 (1911), this Court said that "it was not error to refuse to permit [the defendant in a criminal case] to testify to the contents of letters sent by [his wife] to him, or given or shown to him by her, whether written by her or others.”

Earlier, this Court had approved the admission in evidence of letters from one spouse to the other that apparently had been misplaced and obtained by the defendant insurance company "without collusion or voluntary disclosure” by the spouse. O’Toole v Ohio German Fire Ins Co, 159 Mich 187, 193; 123 NW 795 (1909).5 The clear meaning, consistent with substantial authority in other jurisdictions6 cited by this Court in O’Toole, is that the letters would not have been admissible if the spouse had colluded in their transmittal to the insurance company.

In People v Dunnigan, 163 Mich 349; 128 NW 180 (1910), the accused delivered a letter addressed to his wife to an acquaintance who promised to deliver it to the wife, but who delivered it to the sheriff. In holding that the letter was admissible, *599this Court quoted with approval the following statement from O’Toole:

"And so it has been held, and, we think, correctly, that where the communication, oral or written, has, without collusion or voluntary disclosure, escaped the custody and control of the parties communicating, or the custody and control of their agents or representatives, it is not privileged.” [Id. at 351. Emphasis added.]

Twelve years later, in People v Salisbury, 218 Mich 529, 533; 188 NW 340 (1922), the defendant had been convicted of assault with intent to commit rape. He was cross-examined at length concerning his denials of "admissions” claimed to have been made by him to his wife. He was asked to read "a statement in writing [from his wife] to him, in which she had said that defendant made the admissions which he as. a witness denied.” The Court said that the prosecutor "could not and did not seek to call the wife as a witness,” and that it was error requiring reversal to place before the jury indirectly "that such damaging admissions had been made by the defendant to her.”

Salisbury thus stands for the proposition that it is violative of the marital communications privilege to place before the trier of fact, a wife’s statements concerning statements made to her, orally or in writing, by her husband. The wife in Salisbury was not called or sworn as a witness. Nevertheless, this Court said that what was done was violative of the marital communications privilege, and concluded that "[f]or the error thus committed, the verdict must be set aside and a new trial granted.”

The Legislature has not spoken in the seventy years since Salisbury was decided. It is not appropriate at this late date, over eighty years after *600O’Toole and Bowen were decided, to revise the construction, consistently placed by this Court on this privilege, to the effect that it bars evidence of marital communications without regard to whether it is sought to introduce evidence of the marital communication through the testimony of a spouse as a sworn witness in court, or by some other means such as a writing containing statements from one spouse to the other.7

Absent an authoritative decision of this Court, the majority adverts to statements I made in a concurring opinion in People v Hamacher, 432 Mich 157; 438 NW2d 43 (1989), in response to statements in a dissenting opinion in that case.8 *601The dissenting justice sought to limit the privilege so that it could not be invoked where the privacy of the communication/marital relationship had already been violated by disclosure of the statements:

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.[9]

Responding to that statement, I wrote that the communications privilege did not bar a spouse from disclosing a confidential communication to a prosecutor, newspaper reporter or someone else. Nevertheless, although the "secret” would then no *602longer be secret, "Hamacher’s wife could not, consistent with § 2162, 'be examined’ in court with regard to the communication.” I take it that if I had stopped there, the majority would not regard my concurring opinion as support for overruling O’Toole and other decisions.

But then I went through the fence, adding that it would be inappropriate, one hundred twenty-five years after enactment of the privilege, to restate, as would the dissent, the purpose of the communications privilege as designed "to protect the secrecy of the communication” or "that the legislative purpose in 1861 was other than the literally stated purpose of precluding the spouse from 'be[ing] examined’ in court.” (Emphasis added.)

On more careful study, it is clear that the words "examine” or "examined” are not limited to examination of a witness in court. Neither Ballantine’s Law Dictionary, 3d ed, nor Black’s Law Dictionary, 4th ed, define either word. Corpus Juris Secundum defines "examine” without reference to the examination of witnesses in court in much the same way as that word is defined in standard English language dictionaries:

Examine. To inspect or survey carefully; look into the state of; scrutinize and compare the parts of; view or observe in all aspects and relations, with the purpose of forming a correct opinion or judgment; to test by an appropriate method; to inspect carefully; to investigate; scrutinize. The term necessarily implies the power of allowance or rejection, and, in a particular connection, it is only a disputed fact that can be the subject of the examination. [32A CJS, p 855.]

*603The Random House Dictionary of the English Language defines "examine” as follows:

examine ... 1. to inspect or scrutinize carefully: to examine a prospective purchase. ... 3. to inquire into or investigate: to examine one’s motives. 4. to test the knowledge, reactions, or qualifications of (a pupil, candidate, etc.), as by questions or assigning tasks. 5. to subject to legal inquisition; put to question in regard to conduct or to knowledge of facts; interrogate; to examine a witness; to examine a suspect. [Second Edition, Unabridged, p 674.]

Similarly, see Webster’s Third New International Dictionary, p 790. It thus clearly appears that "examine” means to inspect or scrutinize, to inquire into or investigate, to test, to interrogate, and also to examine a witness. The inquiry or interrogation of a witness may thus be in court or out of court — the inquiry or interrogation need not be under oath.

That the inquiry or interrogation of a spouse might not be in court was recognized by the Legislature in 1861, when it enacted the marital privileges, and has been carried forward to this day. The spousal privilege — the privilege against spousal testimony10 — is stated as a privilege against examination as a witness:

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 .... [MCL 600.2162; MSA 27A.2162. Emphasis added.]

But the marital communications privilege is not limited to examination "as a witness.” The privi*604lege is stated, rather, without the "as a witness” qualification:

[N]or shall either, during the marriage or after-wards, without the consent of both, be examined as to any communication made by one to the other during the marriage .... [MCL 600.2162; MSA 27A.2162. Emphasis added.]

The Legislature thus carefully drew a distinction between "examined as a witness,” the privilege against spousal testimony, and "examined,” the privilege against use of a marital communication. Clearly, without regard to whether the inquiry or interrogation is in or out of court, a spouse may not be "examined” concerning a marital communication without the consent of both spouses.

The majority claims that its pronouncement today follows "the mandate of strict construction.”11 Adherence to strict construction would, however, require recognition of the distinction between "examined as a witness” and "examined” so clearly drawn by the Legislature over one hundred thirty years ago.

I acknowledge my error in stating that the legislative purpose in 1861 was confined to the "literally stated” purpose of precluding a spouse from "be[ing] examined” in court. It is clear from the dictionary definitions that "examine” or "examined” are not literally limited to either examination in court or to examination as a witness.

It is also clear, on the authority of the four earlier statements of this Court in Bowen, O’Toole, Dunnigan, and Salisbury, on principle, and on the basis of the overwhelming weight of authority in *605other jurisdictions, that the privilege extends to writings from one spouse to another, and generally bars introduction in evidence in court of a marital communication either through the testimony of a witness who spoke with a spouse or in the form of a document containing statements from one spouse to the other.

I must, therefore, dissent from the obiter dictum in my concurring opinion in Hamacher, and from the Court’s reliance on such a weak reed. Because no other justice signed my concurring opinion, it does not constitute a decision of this Court. My statement in Hamacher does not support or justify overruling O’Toole and other decisions.

Ordinarily, as in two of the three Court of Appeals decisions relied on by the majority, the hearsay rule will bar the testimony of a person who spoke to a spouse who revealed a confidential marital communication, and will also bar admitting in evidence a writing containing statements from one spouse to the other. In People v DeWitt, 173 Mich App 261, 266; 433 NW2d 325 (1988), and People v Burton, 177 Mich App 358, 362; 441 NW2d 87 (1989), the Court held that statements claimed to have been made by a spouse and a writing prepared by a spouse were barred by the hearsay rule.

In DeWitt, however, before holding that the hearsay rule barred evidence concerning a wife’s statements, the Court said that because her statements were introduced through a third person and the wife did not testify, the marital communications privilege was inapplicable. The Court made that statement without reference to Bowen, O’Toole, Dunnigan, or Salisbury, or any other *606authority in this or any other jurisdiction, on the basis of implication: "The statute clearly states that neither spouse may be 'examined as a witness’ against the other spouse, implying that either spouse must testify.” (Emphasis added.) Implication is not a substitute for research of law concerning how the privilege has been applied in this and other jurisdictions.

The obiter dictum in DeWitt was the only authority cited in Burton, supra, p 362,12 and People v Williams, 181 Mich App 551, 554; 450 NW2d 85 (1989).13

While the hearsay rule would ordinarily bar a witness from testifying, as did the detective concerning what Fisher said to his estranged wife, and would ordinarily also bar admitting in evidence a writing reciting her statements, the Rules of Evidence provide that the rules do not apply to sentencing proceedings. The rules also provide, *607however, that the privileges do apply to sentencing proceedings.14

The Court today, in a criminal prosecution, limits the scope of the communications privilege. But the limitation announced today will apply in civil cases as well.15 The question is therefore broader, and the decision of this Court more far reaching than whether the communications privilege "may be invoked in a sentencing proceeding to preclude consideration by the sentencing court of certain extrajudicial statements made by defendant’s estranged wife and set forth in the presentence report.”16 (Emphasis added.)

Courts generally have had some difficulty deciding whether the communications privilege bars the introduction in evidence of letters from one spouse to another — which, like the presentence report here at issue, are writings containing statements from one spouse to the other. Letters can be mislaid and find their way into the hands of third persons. Many courts have analogized letters that inadvertently come into the hands of a third per*608son to statements overheard by a third person17 which, because they are not then confidential, are not protected by the communications privilege.18 But courts generally have also concluded that the privilege bars the introduction of letters deliberately transferred by the addressee spouse to a third person.

McCormick reports that many if not most of the cases state that the privilege will not be lost if "the delivery or disclosure of the letter be due to the betrayal or connivance of the spouse to whom the message is directed.” (Emphasis added.) McCormick appears to agree with that approach, stating: "Just as that spouse would not be permitted, against the will of the communicating spouse, to betray the confidence by testifying in court to the message, so he or she may not effectively destroy the privilege by out-of-court betrayal.”19 (Emphasis added.)

Wigmore similarly states:

(3) For documents of comm unication coming into the possession of a third person, a distinction should obtain, analogous to that already indicated for a client’s communications (§§ 2325 and 2326 supra). That is, if they were obtained from the *609addressee spouse by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nulliñed for written communications); but if they were obtained surreptitiously or otherwise without the addressee’s consent, the privilege should cease. The rulings here are not harmonious. [Emphasis added.]

Decisions in other jurisdictions support McCormick’s and Wigmore’s statements that the spouse to whom the communication is made may not "destroy the privilege by out-of-court betrayal” or "collusion.” Dalton v People, 68 Colo 44; 189 P 37 (1920) (husband could not testify concerning letter written by wife); Selden v State, 74 Wis 271; 42 NW 218 (1889) (letters from the defendant to his wife subpoenaed by the prosecutor were inadmissible); Wilkerson v State, 91 Ga 729; 17 SE 990 (1893) (a letter from the defendant to his wife delivered by her to the prosecutor was inadmissible); Scott v Commonwealth, 94 Ky 511; 23 SW 219 (1893) (letter from defendant to his wife, which appears to have been delivered by her to the prosecutor was inadmissible); Mahner v Linck, 70 Mo App 380, 388 (1897) (letters from a husband to his wife are not admissible "whenever they have come to the possession of a third party by the agency of the husband or the wife”); State v St John, 94 Mo App 229; 68 SW 374 (1902) (a communication from a husband to his wife delivered by her to a third person was inadmissible); Cole v Texas, 48 Tex Crim 439; 88 SW 341 (1905) (evidence that the defendant husband learned the contents of a letter from his wife’s father to his wife was inadmissible as a confidential marital communication); McCoy v Justice, 199 NC 602; 155 SE 452 (1930) (letters between a husband and his wife turned over by her to a third party were *610inadmissible); Martin v State, 203 Miss 187; 33 So 2d 825 (1948) (the admission of a letter from a wife of a witness to the witness was erroneous).

In Commonwealth v Fisher, 221 Pa 538, 544; 70 A 865 (1908), the Supreme Court of Pennsylvania ruled that letters from the defendant to his wife, delivered by her to the district attorney, were inadmissible. The court said that the letters "could not be produced by the wife and offered in evidence as coming from her because this in effect was permitting the wife to testify against her husband . . ., which cannot be done under our statute.” (Emphasis added.)

Nor is third-party testimony admissible concerning a marital communication that has been divulged. Brown v Wood, 121 Mass 137 (1876) (the testimony of third parties to whom a husband and wife repeated details of a transaction was inadmissible). See also Gross v State, 61 Tex Crim 176; 135 SW 373 (1911) (a third party who casually read a letter from a husband to his wife cannot testify concerning its contents).

Modern cases make the same distinction between inadvertent and deliberate disclosure of letters by a spouse. In State v Myers, 230 Kan 697, 702; 640 P2d 1245 (1982), the defendant sought to prevent the admission of letters he had written to his wife that were found by her former landlord and delivered to the police. The Supreme Court of Kansas affirmed the trial court’s admission of the letters, stating:

Under the statute, a defendant charged with a crime has a right to prevent the other from violating the conñdentiality of the marital relationship *611by disclosing a conñdential communication. Where, however, the confidential communication inadvertently and unintentionally falls into the hands of a third person, the admission of testimony about the confidential communication would not constitute a violation of the marital privilege.

In an earlier decision of the Kansas Supreme Court, State v Holt, 223 Kan 34; 574 P2d 152 (1977), the court held that it was error, albeit harmless error, to have admitted a note20 from the defendant to his wife, left by him in the kitchen of their home and delivered by her to the authorities.

These Kansas cases, Myers and Holt, are noteworthy because the thin line of authority relied on by the majority all trace back to the Kansas case of State v Buffington, 20 Kan 599 (1878), which, as appears from Myers and Holt, is no longer followed in Kansas. See part c.

In McCravey v State, 2 Tenn Crim App 473; 455 SW2d 174 (1970), the Tennessee Court of Criminal Appeals held that a defendant’s letter to his wife, delivered by her to the authorities, was improperly admitted in light of the privilege, but the error was harmless.

The Illinois Court of Appeals, in People v Gardner, 105 Ill App 3d 103, 116; 60 Ill Dec 951; 433 NE2d 1318 (1982), affirmed the trial court’s exclusion of a letter written by a codefendant to his wife on the basis of the privilege:21

*612[T]he privilege is not lost even if "the delivery of the letter be due to the betrayal or connivance of the spouse to whom the message is directed.” [Quoting People v Simpson, 68 Ill 2d 276; 12 Ill Dec 234; 369 NE2d 1248 (1977).][22]

The Court of Appeals of Georgia held that a note left by a husband for his wife shortly before he died as a result of a gunshot, claimed to have beén self-inflicted, was inadmissible because it was a confidential marital communication. Georgia Int’l Life Ins Co v Boney, 139 Ga App 575; 228 SE2d 731 (1976).

A New York court held that letters written by a wife to her husband were inadmissible, and dismissed an indictment because otherwise there was insufficient evidence. People v Harris, 39 Misc 2d 193; 240 NYS2d 503 (1963).

The Supreme Court of Wisconsin held that the rules of privilege, including the marital communications privilege, apply to proceedings before a magistrate for the issuance of a search warrant:

Marital confidences would not be meaningful if a spouse could decide to reveal the confidence to a third person and thereby destroy the protection of the privilege. We conclude that a communication *613which is privileged when made remains so, regardless of an unauthorized out-of-court disclosure. The status of the particular marital relationship has no bearing on whether a privilege exists for marital communications. The fact that the defendant was served with a divorce summons shortly after his wife’s disclosures is therefore irrelevant to the issue here. Sec. 885.18, Stats. 1971, prevents disclosure during the marriage or "afterwards.” [Muetze v State, 73 Wis 2d 117, 129-130; 243 NW2d 393 (1976).]

The majority adverts to two alr annotations23 and concludes that there is "wide disparity in the case law in other jurisdictions.”24 Both McCormick and Wigmore report, however, that the majority of jurisdictions follow the approach of this Court in O’Toole, holding that the communications privilege bars the admission in evidence of a letter obtained through the betrayal or connivance of a spouse, but not a letter obtained through interception, loss or misdelivery.25

A few courts have, indeed, held that letters from one spouse to another are not protected by the privilege even where a spouse deliberately delivers the letters to a third person. But on examination, these cases all appear to trace back to State v Buffington, supra, in which the Kansas Supreme Court analogized to the situation where a third person inadvertently overhears a conversation between spouses. As this Court indicated in O’Toole, *614that analogy does not justify holding that the privilege does not bar introduction in evidence of a confidential marital communication deliberately delivered by a spouse to a third person.26

On principle, there is no reason to distinguish between a deliberate oral statement by a spouse to a third person of a confidential communication, and a deliberate delivery by a spouse to a third person of a written communication. Manifestly— we all agree — a spouse could not be examined in court concerning an oral confidential communication simply because that spouse had deliberately revealed the substance of the communication to third persons. That being the undoubted rule of law, there is no basis in reason for holding that the privilege does not bar the testimony of a witness who spoke to a spouse who reported to the witness a confidential marital communication, or that the privilege does not bar the admissibility of a document containing communications from one *615spouse to the other. As stated by Justice Miller of the United States Circuit Court in Bowman v Patrick, 32 F 368, 369 (ED Mo, 1887):

I am quite clear that the wife has no right to publish these communications; that she would not be permitted to produce the letter if she were a witness on the stand; that she could be enjoined from producing the letter if she were supposed to be hostile to her husband ....

The alr article relied on by the majority cites a handful of cases, beginning with Buffington, decided in 1878, and concluding with a Louisiana case decided in 1920 for the view it adopts today. A number of the cases cited are not in point.27 The alr article, published in 1981, cites no case later than 1920, the pocket part cites no later case, and the majority cites no later case that supports the extreme view, adopted by the majority, that "the mere fact that [written] a marital communication came within the possession or knowledge of a third person is sufficient to render it admissible in evidence.”28

The majority states that the "undisputed modern trend is toward a restrictive, rather than expansive, interpretation of the privilege.”29 But the majority does not cite a single modern case that, in keeping with that "trend,” supports the *616specific limitation it imposes today, confining the communications privilege to testimony by the spouse as a witness in court.

United States Courts of Appeal, which may expound on the "privileges from the principles of the common law 'in the light of reason and experience? Fed R Evid 501,” have recently ruled that an fbi agent who spoke to the defendant’s wife should not have been permitted to testify concerning what the defendant was claimed to have said to her,30 and that a letter turned over to the government by the wife, who had entered into a plea bargain, was inadmissible.31

Despite the "trend,” the Uniform Rules of Evidence, 1974 Act,32 and the Model Code of Evidence *617(1942),33 do not limit the scope of the communications privilege to repetition by the spouse of the marital communication in court.

There have, indeed, been recent changes in the scope of the communications privilege, especially by the federal courts where the privileges are not statutory34 but the change imposed today finds no support in any recent authority.

*618VII

The majority states that the "unusual situation presented in the instant case” is addressed in United States v Burton, 631 F2d 280 (CA 4, 1980) and State v Minor, 188 Neb 23; 195 NW2d 155 (1972).

Both courts did indeed hold that it was not violative of a defendant’s rights to include in a presentence report hearsay statements made by his wife to a probation officer. As set forth in the quotation from Burton in the majority opinion,35 the wife provided " 'information concerning the defendant’s background, character, and conduct.’ ” In providing such information, said the court, "there was no violation of any privileged marital communication.” Clearly there is a substantial *619difference between providing information concerning a defendant’s background, character, and conduct, which need not include the substance of any marital communication, and repetition of a marital communication.

In Minor, the Nebraska Supreme Court similarly held that it was not violative of the defendant’s rights to include, in a presentence report, hearsay statements of his wife. The court said, as set forth in the majority opinion, that it construed "a wife’s incompetency in criminal proceedings against her husband to be limited to testimonial utterances.” (Emphasis added.) The substance of the hearsay statements made by the wife contained in the presentence report is not set forth in the opinion of the court. There is no basis for inferring that her statements concerned confidential marital communications. The court referred to an earlier decision of the Nebraska Supreme Court, but there is no indication that the information there provided was other than background information.

We have found two cases concerning the applicability of a privilege to presentence reports. In Southern Blue Grass Mental Health v Angelucci, 609 SW2d 931 (Ky App, 1980), and Idaho v Browning, 121 Idaho 239; 824 P2d 170 (Idaho App, 1992), the intermediate appellate courts of Kentucky and Idaho held that the physician-patient privilege was applicable to presentence reports, and therefore confidential information covered by the privilege could not be considered in sentencing.

I would affirm the judgment of the Court of Appeals on this issue.

190 Mich App 598; 476 NW2d 762 (1991). See n 4 for the text of this statutory privilege.

The challenged statements made by defendant’s estranged wife, as reported in the presentence report, are as follows:

"[1] [Defendant]: 'Is your fuckinfg] boyfriend here? Tell him to come in here so I can stick him a couple of times.’

"[2] She started to cry and asked [defendant], 'Did you stab him?’ to which he replied, 'Fuck yes I stuck him.’

"[3] Mary followed [defendant] outside of the house and [defendant] told her to tell the police that Tappert had fallen into the knife.”

We note initially that defendant concedes that the second statement was not a privileged communication because of the presence of a third party (Ms. Fisher’s son) when the communication was made. [Id., p 601.]

Id., p 603.

The statute provides:

[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 .... [MCL 600.2162; MSA 27A.2162.]

This is the first Michigan case in point we found since enactment of the marital communications privilege, 1861 PA 125.

See 1 McCormick, Evidence (4th ed), § 82, p 303.

Or through the testimony of a person who spoke with a spouse,

In Hamacher, the defendant was convicted of second-degree criminal sexual conduct. The Court of Appeals, on remand, held that the circuit court should not have admitted testimony by his wife concerning statements he allegedly made regarding his conduct with his stepdaughter. This Court held that the statutory exceptions applicable to the spousal privilege, including the exception for a crime committed against the children of either, did not apply to the communications privilege. This Court further held that it would not consider the prosecutor’s contention that Hamacher’s failure to object to his wife’s testimony at the preliminary examination precluded objection at trial.

One of the justices dissented, asserting that the statutory exceptions to the spousal privilege should be applicable to the communications privilege, and that, in all events, Hamacher had waived the privilege when he failed to object to his wife’s testimony at his preliminary examination.

I filed a separate opinion, responding to the statement in the dissenting opinion that there was waiver, and also responding to the following statement in the dissenting opinion:

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. [Id, p 194 (Boyle, J., dissenting).]

*601I wrote:

Section 2162 of the Revised Judicature Act does not purport to bar a spouse from disclosing a confidential communication. 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. [Id., p 177 (Levin, J., concurring).]

I also wrote:

The courts have no basis for declaring that the statutory purpose in 1861 was to protect the secrecy of the communication when the statute itself clearly does not purport to do so. There is no basis for concluding in 1989 — over one hundred twenty-five years after enactment — that the legislative purpose in 1861 was other than the literally stated purpose of precluding the spouse from "be[ing] examined” in court. [Id., pp 179-180.]

Id., p 194 (Boyle, J., dissenting).

Ante, p 563.

Ante, p 579.

The Court said:

The privilege is inapplicable because defendant’s wife is not being called to testify, nor is defendant being questioned with regard to the statement.

The Court said that the "marital privilege is a testimonial privilege which is inapplicable here because defendant’s husband was not required to testify.”

The Court considered a ruling by the circuit court suppressing evidence that the defendant’s husband had made a statement to a 911 operator to the effect that a "woman just shot her tenant.” Id.

The Court held that the 911 operator could testify if the circuit court determined that "a hearsay exception applied” and that the tape could be played "if it were otherwise properly introduced.” Id.

The question whether the privilege should be "limited to expressions intended by one spouse to convey a meaning or message to the other” (emphasis in original), or whether it should extend "to acts, facts, conditions, and transactions not amounting to communications at all,” is not presented, 1 McCormick, Evidence (4th ed), § 79, pp 296-297, would limit the privilege to "expressions,” but reports that a large number of courts have construed their statutes as extending to acts, facts, conditions, and transactions not amounting to expressions.

Rule 1101 Applicability

(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 ... .

For example, Wigmore states that the rules concerning loss of the privilege respecting documents coming into the possession of a third person are much the same for the attorney-client privilege and the marital communications privilege. 8 Wigmore, Evidence (McNaughton rev), § 2325, p 632; § 2339, p 668.

Ante, p 563.

1 McCormick, n 6 supra, § 82, p 303.

One of the three statements in the instant case was overheard. See n 2.

1 McCormick, n 6 supra, § 82, p 303. McCormick also states that the weight of decision seems to support the view that the privilege does not protect against the testimony of third persons who have secured possession or learned the contents of a letter from one spouse to another by interception, or through loss or misdelivery by the custodian. The treatise states that if the communicating spouse "sends a messenger with a letter, he should ordinarily assume the risk that a chosen emissary may lose or misdeliver the message.” Id., p 304.

The note read:

Jo, I had to kill a person tonight. I will be back soon, tomorrow night at your mother’s place. Please understand. Garry. [Id., p 38.]

Nitz wrote a letter to his wife, indicating in the body of the letter that he believed jail authorities were reading his mail. Mrs. Nitz showed the letter to Mrs. Gardner, Nitz’ codefendant’s wife and the Nitzes’ daughter, who told her husband about the letter and its *612contents. In the meantime, Mrs. Nitz delivered the letter to her husband’s attorney, Eeed, who also represented Gardner. Gardner then requested a copy of the letter, and, after receiving permission from Mrs. Nitz, Reed delivered a copy to Gardner. Mrs. Nitz then reclaimed the original letter from Reed. Gardner sought to impeach Nitz at trial with the photocopy. After an in camera hearing, the judge determined that use of the letter would violate both the marital and attorney-client privileges. Id., pp 114-115.

The Illinois Court of Appeals has also held that police officers who eavesdrop on a marital conversation with the cooperation of one spouse, assumed by the other spouse to be confidential, are prohibited from testifying about the contents of the conversation by the marital communications privilege. People v Dubanowski, 75 Ill App 3d 809; 31 Ill Dec 403; 394 NE2d 605 (1979). Similarly, see Hunter v Hunter, 169 Pa Super 498; 83 A2d 401 (1951); Hicks v Hicks, 271 NC 204; 155 SE2d 799 (1967).

Applicability of marital privilege to written communications between spouses inadvertently obtained by third person, 32 ALR4th 1177; Spouse’s betrayal or connivance as extending marital communications privilege to testimony of third person. 3 ALR4th 1104.

Ante, p 571.

See n 18 and accompanying text.

In State v Buffington, supra, the wife deliberately betrayed the confidence of the communication by causing the letter to be turned over to the prosecutor.

In State v Hoyt, 47 Conn 518, 540 (1880), however, it is unclear how the letters came into the possession of the prosecutor. The court said that how the letters were obtained "or whether they were ever in the wife’s possession did not appear . . . .”

In People v Hayes, 140 NY 484, 495; 35 NE 951 (1894), the letters were to the defendant from his wife. He had delivered his wife’s letters to his mistress, which prompted the court to state: "Comment upon the baseness of this act of the defendant is unnecessary.” It was the defendant, the addressee spouse, who had delivered the letters to his mistress, who sought to exclude them on the basis of privilege. In ruling against him, the court relied on Buffington and Hoyt, and said of the defendant that "he, deliberately violating every principle of honor and decency, gives the letters to his mistress, by whom they were delivered to the district attorney. A rule which would still preserve the confidential character of these letters as against this husband would be founded upon more sentiment than sense.” Id., p 496. (Emphasis added.)

Similarly, see State v Sysinger, 125 NW 879 (SD, 1910), State v Morgan, 147 La 205; 84 So 589 (1920), and Hammons v Arkansas, 73 Ark 495; 84 SW 718 (1905), also relying on Buffington, Hayes, and Hoyt.

The Louisiana case decided in 1920, State v Morgan, n 26 supra, is not in point because the Louisiana statute in terms speaks of "conversations” rather than "communications,” and has been consistently construed to apply only to oral communications. State v Fuller, 454 So 2d 119 (La, 1984).

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