CAVANAGH, C.J. (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 privilege 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 N.W. 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 included in presentence reports." 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 spouse from disclosing confidential marital communications at judicial proceedings, unless both spouses consent. People v Hamacher, 432 Mich. 157, 161; 438 N.W.2d 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 N.W. 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 likely to result from permitting their disclosure than the benefit to be gained thereby.'" People v Ignofo, 315 Mich. 626, 638; 24 N.W.2d 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.

The majority dismisses this problem by holding, "[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 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), by allowing evidence indirectly that is prohibited directly, a ploy this Court long has forbidden.

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 also 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. 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.

III

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. First, putting the spouse on the stand is not a requirement for a communication to fall within the protection of the marital communication privilege. 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.

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.

The 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 N.W.2d 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").

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 does 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 spouse 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 N.W.2d 85 (1989), which only involved the spousal privilege. Similarly, People v Burton, 177 Mich. App. 358; 441 N.W.2d 87 (1989), does not involve the marital communication privilege, and the statements at issue in People v DeWitt, 173 Mich. App. 261; 433 N.W.2d 325 (1988), were not confidential marital communications. Williams, nonetheless, warrants further explication. In Williams, the defendant allegedly shot her tenant. The defendant's husband immediately called for emergency assistance and reported that a "`woman just shot her tenant.'" The defendant's husband was prohibited from testifying in court against 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 testimony 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 N.W. 977 (1890), which involved the patient-physician communication privilege. 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.

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 permitted 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 "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. 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.

The following opinion was filed with the Clerk of the Supreme Court on June 30, 1993, after the release of the opinion of the Court on June 29, 1993 — REPORTER.

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 the 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.

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.

I

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 judge 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 statements 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."

II

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.

In People v Bowen, 165 Mich. 231, 237; 130 N.W. 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 N.W. 795 (1909). The clear meaning, consistent with substantial authority in other jurisdictions 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 N.W. 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, this 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 N.W. 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 O'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.

III

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 N.W.2d 43 (1989), in response to statements in a dissenting opinion in that case.

The 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.

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 longer 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.)

A

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.]

The 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 testimony — 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 privilege is stated, rather, without the "as a witness" qualification:

[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. 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." 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.

B

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 other 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.

IV

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 N.W.2d 325 (1988), and People v Burton, 177 Mich. App. 358, 362; 441 N.W.2d 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 authority 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, and People v Williams, 181 Mich. App. 551, 554; 450 N.W.2d 85 (1989).

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, however, that the privileges do apply to sentencing proceedings.

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. 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." (Emphasis added.)

V

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 person to statements overheard by a third person which, because they are not then confidential, are not protected by the communications privilege. But courts generally have also concluded that the privilege bars the introduction of letters deliberately transferred by the addressee spouse to a third person.

A

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." (Emphasis added.)

Wigmore similarly states:

(3) For documents of communication 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 addressee spouse by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nullified 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 N.W. 218 (1889) (letters from the defendant to his wife subpoenaed by the prosecutor were inadmissible); Wilkerson v State, 91 Ga. 729; 17 S.E. 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 S.W. 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 S.W. 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 S.W. 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 N.C. 602; 155 S.E. 452 (1930) (letters between a husband and his wife turned over by her to a third party were inadmissible); 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 S.W. 373 (1911) (a third party who casually read a letter from a husband to his wife cannot testify concerning its contents).

B

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 P.2d 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 confidentiality of the marital relationship by disclosing a confidential 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 P.2d 152 (1977), the court held that it was error, albeit harmless error, to have admitted a note 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 S.W.2d 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 N.E.2d 1318 (1982), affirmed the trial court's exclusion of a letter written by a codefendant to his wife on the basis of the privilege:

[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 N.E.2d 1248 (1977).]

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 been self-inflicted, was inadmissible because it was a confidential marital communication. Georgia Int'l Life Ins Co v Boney, 139 Ga. App. 575; 228 S.E.2d 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 N.Y.S.2d 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 which 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 N.W.2d 393 (1976).]

C

The majority adverts to two ALR annotations and concludes that there is "wide disparity in the case law in other jurisdictions." 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.

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, that 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.

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 spouse 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. 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."

VI

The majority states that the "undisputed modern trend is toward a restrictive, rather than expansive, interpretation of the privilege." But the majority does not cite a single modern case that, in keeping with that "trend," supports the specific 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, and that a letter turned over to the government by the wife, who had entered into a plea bargain, was inadmissible.

Despite the "trend," the Uniform Rules of Evidence, 1974 Act, and the Model Code of Evidence (1942), 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 statutory but the change imposed today finds no support in any recent authority.

VII

The majority states that the "unusual situation presented in the instant case" is addressed in United States v Burton, 631 F.2d 280 (CA 4, 1980) and State v Minor, 188 Neb. 23; 195 N.W.2d 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, 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 difference 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 S.W.2d 931 (Ky App, 1980), and Idaho v Browning, 121 Idaho 239; 824 P.2d 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.