ΒΆ 8 The State filed a motion to reconsider. In its motion, it argued that the "text messages are admissible under the third-party exception," citing People v. Simpson , 68 Ill. 2d 276, 280, 12 Ill.Dec. 234, 369 N.E.2d 1248 (1977). The motion contained a summary of the communications at issue, which the trial court ordered redacted by agreement.
Defendant was convicted of murder in April 1973 after a jury trial in the circuit court of Sangamon County and sentenced to 25 to 75 years imprisonment. The appellate court reversed and remanded ( 39 Ill. App.3d 661), but this court reversed the decision of the appellate court and remanded to that court for determination of issues raised but not reached in its original disposition of the case ( 68 Ill.2d 276). Upon remand the appellate court affirmed defendant's conviction and sentence ( 57 Ill. App.3d 442). We granted defendant's petition for leave to appeal under our Rule 315 (65 Ill.2d R. 315).
Defendant maintained that these confidential communications were obtained without her knowledge or consent. Defendant originally argued that she had taken no action to reveal these communications, as was the case in People v. Simpson, 68 Ill. 2d 276, 280 (1977) (recognizing the third-party exception to marital privilege). Gliniewicz I, 2018 IL App (2d) 170490, ΒΆΒΆ 9-10.
Id. at 212β14, 395 N.W.2d 176. The State contends this case is analogous to Illinois v. Simpson, 68 Ill.2d 276, 12 Ill.Dec. 234, 369 N.E.2d 1248 (1977). However, Simpson is best viewed as an example of waiver of marital privilege as to an entire communication.
β’ 5 A confidential letter written from one spouse to another is privileged (Ill. Rev. Stat. 1979, ch. 38, par. 155-1; People v. Simpson (1977), 68 Ill.2d 276, 369 N.E.2d 1248) and may not be used at trial over the assertion of the privilege by a party to it. There is no doubt that the excluded letter was written by Nitz to his wife, who was married to him at the time of communication, as well as during Gardner's trial.
This court has long recognized that" 'a voluntary revelation by the holder [of the privilege] of the communication, or of a material part, is a waiver.'" People v. Simpson, 68 Ill.2d 276, 281 (1977) (quoting Edward W. Cleary, McCormick's Handbook of the Law of Evidence Β§ 83, at 170 (2d ed. 1972)); Turner v. Black, 19 Ill.2d 296, 309 (1960) (attorney-client privilege "may be waived by the person whom the privilege is intended to benefit" when a privilege holder voluntarily testifies about privileged matters).
Appellant again argues that it was improper for the trial court to recognize an exception to the testimonial privilege that was not identified in the statute, and that the legislature is in a better position to address public policy issues than the court. We have not directly ruled on denial of the spousal privilege based on the joint participation of the spouses in criminal activity, although we have indirectly supported its rationale, see, e.g., Hannuksela, 452 N.W.2d at 676 ("`A loyal spouse should not, in our view, become a partner in crime with the blessing of the law bestowed through a strained construction of the statute which is said to be supported by a policy of promoting marital bliss'" (quoting People v. Simpson, 350 N.E.2d 517, 524 (Ill.App.Ct. 1976), rev'd on other grounds, 369 N.E.2d 1248 (Ill. 1977)), and we have expressly recognized the strict application of a privilege where it stands "as a barrier to testimonial disclosure," Minneapolis Star Trib. Co. v. Hous. Redev. Auth. of Minneapolis, 310 Minn. 313, 320, 251 N.W.2d 620, 624 (1976) (citation and quotation omitted). Nonetheless, as noted above, our appellate courts have a history of recognizing the important social policy objective of preserving the marital relationship and deferring to the legislature to determine public policy with regard to family and marital issues.
[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 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.
ΒΆ 167 In People v. Simpson, 68 Ill.2d 276 (1977), the Illinois Supreme Court addressed waiver of the marital privilege. In Simpson, the defendant told his estranged wife that he had killed his paramour.
Illinois courts have relied on Federal Rule of Evidence 801(d)(2) in finding that a defendant's admissions are not excludable as hearsay. (See People v. Simpson (1977), 68 Ill.2d 276, 369 N.E.2d 1248; Wilson, 92 Ill. App.3d 370, 415 N.E.2d 1315; People v. Chew (1977), 45 Ill. App.3d 1024, 360 N.E.2d 417.) That rule provides that admissions by party-opponents are not hearsay: