People v. Hamacher

v Hamacher PEOPLE HAMACHER (Calendar 2). Argued April 6, Docket No. 81202. No. Decided 30, 1989. March Richard A. jury Hamacher was convicted in the Genesee Court, Freeman, J., second-degree Circuit Donald R. of criminal involving eight-year-old stepdaughter. sexual conduct The Appeals, Court of T. M. Burns and (Holbrook, Jr., Hood, JJ. P.J., concurring only), opinion per in the result affirmed in an curiam, finding testimony the defendant’s wife was properly exception general spousal privi- admitted as an to the lege prosecution because concerned crime committed against spouse’s applicable one child and was to the communi- privilege parties process cation and because the in the of were (Docket 80765). Supreme divorce No. The Court vacated judgment Appeals Court of and remanded the case for reconsideration, stating that 2162 of the Revised Judicature provides exceptions privilege regarding Act no communi- cations between a husband and wife where the and husband separated process obtaining wife are or are a divorce. remand, Appeals, On Hood, the Court of and JJ. Maher Jr., P.J., concurring only), (Holbrook, in the result reversed 99819). (Docket opinion per people appeal. curiam No. The opinion by joined by In an Levin, Brickley, Justice Justices Supreme Archer, Cavanagh, Court held: case, Appeals correctly In this held spousal testimony communication barred the defendant’s wife. provides 1. Section 2162 of the Revised Judicature Act two privileges: spousal privilege distinct and the communication spousal privilege, applicable only The is when which trial, spouse witness are married at the time of testifying bars one from the other without consent, except the other’s in certain enumerated circum- References 2d, Am Jur Witnesses 148-171. §§ Effect, competency testify against spouse on marital privilege, separation communication or other marital instabil- ity short of divorce. 98 1285. absolute ALR3d spouse from testi- bars a stances. The communication fying to the other made one as to communications marriage during of the other. without the consent privilege applies whether communication marriage, long sought during as the communica- or after the excep- marriage. provides during The act no tion the occurred privilege. respect The evolu- tions with to the communication unambiguous language and indicate tion of 2162 and its clear general exceptions apply only to the that the enumerated spousal privilege the and not to communication prosecutor’s failure to 2. contentions that the defendant’s The object testimony preliminary to at the examination his wife’s trial, alternatively precluded objection that at and his wife as witness when he invoked the commu- rendered unavailable a prior privilege that her recorded testi- nication and therefore preliminary to mony examination could have been read at the 804(b)(1), pursuant jury first were raised for the the to MRE preserved Supreme and thus were not time in the appeal. for a trial. Affirmed and remanded new Levin, writing separately, that the Court’s stated Justice preserve prosecutor the the failed to either conclusion appeal it or an alternative claim for makes unnec- waiver issue essary the the for the Court to consider whether failure of lawyer object testimony to to his wife’s at defendant’s preliminary precluded objection dis- examination at trial. The concerning privi- law waiver of testimonial sent discusses case leges, stating majority dispute the fact that that the does not privilege preliminary the marital at defendant waived examination. waived, privilege a failure While the communication can be necessarily pre- object not a waiver which to does constitute right privilege at new trial. assertion of a a Gener- cludes ordered, ally, de the case is to be retried where a new trial is prejudice to if it had been tried before and without novo as pleadings, parties again party. from their and start either evidentiary objections an trial were not voiced at earlier prejudiced may anew unless the other side would be be asserted object thereby. to to the introduction of The failure ground right to does not waive the make on the adversary proceeding objection subsequent where object. had not the failure been misled Riley joined by Chief Boyle, and Justice Justice Justice Griffin, dissenting, stated: harmony becomes mere rubric where Preservation of marital People v Hamacher spouse willing testify against one another under the Worse, circumstances described in the statute. is a cruel and fiction, demeaning justified by purpose pro- no than to spouse having mote the interest of the adverse no and effect fact-finding process. 600.2162; save to obstruct MCL MSA 27A.2162 should be construed so as to find the communication privilege inapplicable exceptions enumerated Legislature protection which statute in has determined privacy important of marital is a less societal interest than the right testify fully rights. as to a violation of civil or criminal privilege” privileges: The term "marital refers to two distinct other, right spouse testimony by of one and bar right prevent of one revelation of confidential commu- justification nications the other. The for the communication protect harmony encourage is to marital marital represents exception communication. Each in the statute Legislature where instance has the interest balanced harmony against competing overriding marital interest vindicating fully party spouse’s rights. witness Criti- privileges cism of both has centered their conflict with the jurisprudential objective finding advancing of truth. assuming Legislature permit Rather than that the to chose one spouse completely uphold integrity to silence the other to the of confidences, recognized marital it should be certain instances, spouses such as civil in which are cases the adversar- ies, both, involving cases harm child of or to a either or cases in personal wrong injury spouse by which a or is one done to another, privilege yield probative the must to for the need rights controversy. evidence in order to the vindicate exceptions In case even if this the were to be found not to apply privilege, to the confidential communication the defen- by privilege failing object dant the waived to to his wife’s testimony preliminary at his examination. of the Waiver com- privilege, express implied, long recog- munication or been has waived, privilege may by nized. Once not be reasserted stage proceeding any defendant a later the same or at of judicial Thus, subsequent proceeding. a failure the holder to privilege by objection preliminary assert the at the examina- Likewise, tion in the same case is a waiver the testimony, if was error to even admit defendant’s wife’s examination, testimony preliminary at the which defen- to 804(b)(1) object, to dant failed should received under MRE testimony of an because of the unavailable witness defendant’s spousal privilege. assertion of the (1987) App 160 Mich affirmed. NW2d Mich Opinion of the Court Privilege. Spousal — — 1. and Wife Witnesses Husband spousal privilege, applicable only when the witness which is triad, spouse spouse at the time of bars one and the are married testifying against other without the other’s for or from divorce, consent, prosecutions bigamy except for in actions both, or the children of either crime committed or for a wrong injury personal growing done one out of a or actions spouse neglect to furnish the to other or the refusal support, or abandon- cases desertion children with suitable marriage ment, relating title and certain cases 27A.2162). (MCL600.2162; property MSA Privilege — — — 2. and Wife Husband Communication Witnesses Privilege. Spousal privilege Act under the Revised Judicature The communication spouse testifying as to communications made bars a from during marriage spouse without other one regardless of the whether consent marriage long during sought as the communi- or after the during marriage; exceptions enumerated cation occurred apply spousal privilege respect to the do act with 27A.2162). (MCL600.2162; privilege MSA communication Kelley, Attorney General, Louis J. Frank J. General, Weiss, Caruso, cuting Attorney, E. Prose- Robert Solicitor Appel- Chief, Kuebler, A.

Donald Brown, Division, R. Assistant Pros- and Edwin late ecuting people. Attorney, for the Engelman defendant. S. for the

Bennett appeal granted this J. We leave Levin, appeal case, with v Ver- consolidated (1989), meulen, 32; NW2d spousal application communica- of the consider §in Revised forth tion set Judicature Act.1 We conclude Appeals correctly bars the held against for a witness or A shall not examined as husband consent; against nor a wife for or without her wife consent, except in suits for divorce and in husband without his bigamy, prosecution for prosecution in cases of cases of crime committed both, of either or the children wrong grows personal of a or of action out where the cause People v Hamacher Opinion of the Court in defendant’s wife this case and affirm the decision of the Court of Appeals.

i rja Section 2162 of the provides two distinct privileges. first, the spousal privilege, is only applicable when the witness and the spouse are married at the time of trial. This bars spouse one from testifying or against for the other (1) without the other’s consent except actions (2) divorce, prosecutions for bigamy or for a crime committed against the children of either or (3) both, actions growing personal out of a wrong or injury done by one to the other or the refusal or neglect to furnish or children with (4) suitable support, cases of desertion or abandon- (5) ment, and certain cases relating marriage and title to property._ injury other, grows done one to the or out of the refusal or neglect support, furnish the wife or children with suitable except abandonment, and arising in cases of desertion or and cases chapter under section of 83 of the Revised Statutes of amended, relating marriage, and cases where the party suit, action, husband or wife shall be a to the record in a proceeding, separate or property where the title to the of the or where the witness, husband or wife so called or offered as a property from, through title to derived or under the or husband witness, subject wife so called or offered as a shall be the controversy suit, litigation matter proceeding, or in such action or opposition to the claim or interest of the other of persons, party suit, said married who is a to the record in such proceeding; cases, action or and in all such such husband or title, wife who makes such claim of or under or from whom derived, competent testify such title is shall be as in relation separate property to said and the title thereto without wife, party consent of said husband or who is a to the record in suit, proceeding, though marriage such action or rela- exist; either, during marriage tion did nor shall afterwards, both, any without the consent of be examined as to during marriage, communication made one to the other proceeding

but in wife, action or instituted husband consequence adultery, the husband and wife shall competent testify. 600.2162; not be MSA [MCL 27A.2162.] 157 432 Opinion the Court of privi- privilege, the communication The second any lege, testifying from "as bars one during by one to the other communications made the marriage” of the consent the other. without applies privilege whether the The communication testimony sought "during marriage or after- long wards,” during occurred as the communication marriage. rja Section 2162 of respect exceptions communi- no with states cation ii second-degree crimi Hamacher was convicted stepdaughter with his who was nal conduct sexual eight alleged years acts. At old at the time suppress trial, denied his motion to court concerning testimony by his statements Ha wife regarding allegedly with made his conduct macher his Appeals initially stepdaughter. The Court of It that affirmed Hamacher’s conviction. ruled properly admitted because wife’s Legislature exception to the intended prosecutions general spousal privilege concern ing spouse’s chil crimes either committed applicable dren and the communication "in the defendant and his wife were because process time of trial” and of divorce adherence to the rule would not therefore "strict fostering purpose its the marital relat further ionship.”3 judgment of the Court of

This Court vacated the following testimony challenged: of Hamacher’s wife is (1) it was I didn’t "And he said the reason that he had done because lay him, up cuddle the couch him more and watch tv and with Jeannie, that.” would do Jeannie (2) testimony. An affirmation of same sister) (3) (defendant’s admitted it.” "I told her he had (1986). Hamacher, 671, 675; App NW2d People v Hamacher Opinion of the Court

Appeals remanded the to it cause for reconsid- rja eration, stating "contains no exception regarding communica- tions between a husband and wife where the hus- separated process band and wife are or are in the obtaining a divorce. The defendant and his wife remained husband and wife at the time the com- munication in question was made.”4 allegedly remand,

On the Court of Appeals held that "the admission of defendant’s wife’s statements in the instant case is in contravention of the confidential privilege,” stating communication "the stat- ute makes no exception separated for divorced or couples.”5 Court, in appeal prosecutor

On this contends (a) the statutory exceptions applicable to the spousal privilege apply, or should be made applica- ble this Court to the privilege, communication (b) Hamacher waived his right object admission of his wife’s trial because testimony he failed to to her object prelimi- at the examination. nary

hi privileges When the statutory are now rja in 2162 codified of the originally were en- § 1861, acted in exceptions.6 there were no general spousal privilege, priv- communication ilege, and an adultery "preclusion” were clearly separated by semicolons: A husband shall not be examined as a witness wife, consent, against

for or without her nor a 4 (1987). Hamacher, People 884; 484 NW2d (On Remand), 763; App v Hamacher (1987). NW2d 549 spousal privilege, There had been an earlier version of the RS, phrased quite differently. 1846 ch 1857 CL 4339. 432 Mich 157 op Opinion the Court husband, without his con- against for or her

wife either, sent; during marriage or nor shall afterwards, both, be, the consent exam- without made one to the any ined as to communication marriage; in or during the but action other proceedings or the husband wife instituted adultery, consequence of the husband and wife competent testify. PA shall [1861 125.] added,7 set they were exceptions When were exception regarding title certain actions 1869 PA added the property: witness, against A as a for or husband shall not be examined wife, wife, consent; for or his husband, without her nor consent, except in cases the hus- without his where record, action, suit, party to in a or or wife be a band shall separate property proceeding husband or title to or wife where the title wife, witness, so called or offered as a or where from, through, property or under derived the husband witness, subject or so offered as a shall be the called or suit, action, litigation, controversy in such matter proceeding, said married opposition to the or interest of the other of claim suit, persons, party is a the record who in such cases, proceeding; action or all such husband title, claim of under or from whom wife who makes such or derived, testify competent title is be as to in relation such shall thereto, separate property the to said and the title without wife, party in of or is a to the record consent said husband who suit, proceeding, though marriage rela- action or such tion did afterwards, either, exist; during marriage the or nor shall both, any to without the consent of examined as other, during marriage; to one the the communication made proceeding in instituted the or but action or husband wife, consequence adultery, of the husband wife shall in and competent testify. not be to injuries exceptions personal wrongs PA 211 the for or added provide support: or refusal to against as a witness for or A husband shall not be examined consent; against for or her his wife without her husband without his nor a wife consent, except in cases the cause where injury grows personal wrong by one action out of a or done of other, neglect grows or furnish the out of the refusal to the wife of act number one hundred eighteen or meaning support or within the children with suitable thirty-six the of and of session laws eighty-three, except in and cases where hundred and suit, party a in a shall be record the husband or wife People v Hamacher Opinion following forth immediately general spousal exception When for bigamy prosecu- section, tions was added as a separate Legisla- provided ture expressly exception this did not apply privilege: communication That may testify against a husband or hi's for consent, her may testify wife without for or and a wife against consent, her husband without his prosecutions, Provided, all however, bigamy: criminal for nothing

That herein contained shall be permit so construed or husband wife testify against without the consent concerning any both communications made one during marriage.[8] to the other exception Judicature Act of 19159 added for following divorce cases general spousal and included the bigamy exception portion time, of the statute. At the same punctuation was language revised present marital took excep- its form. An tion to the general spousal privilege for the prose- cution of crimes against the children of or one spouses both was added in 1939.10 rja The evolution of and its clear and unambiguous language indicate that enu- merated exceptions apply only general

action, proceeding, separate property or where the title to the of the husband or wife .... PA 212. 314, XVII, PA 9 1915 ch 67.§ against A husband shall not be as a witness for or examined consent; against wife nor a her his without wife for consent, except husband without cases crime suits for divorce and prosecution prosecution bigamy, for in cases of both, committed the children of either grows personal wrong where the of action out or cause of a injury done one to the other .... PA [1939 82.] 432 Mich Opinion of Court spousal privilege communication and not to the frequently Legislature privilege. amended has necessary. "Privi- the statute when was deemed except governed by leges as law, are common 501. MRE Since statute or court rule. modified privileges, governing no court rule marital there is the statute controls.” 699; People Love, Mich v (1986) (opinion 391 NW2d 738 Cavanagh, J.). Eaton, 55 Mich Hunt v We have considered dissenting (1884), 366; 21 NW 429 discussed opinion,11 a number where this Court mentioned concluding that the communica- considerations every be- "includes communication tion tween such

[husband wife] them separate property of either the title to the involves when it becomes litigation necessary to to to resort protect rights obtain, of either secure or separate property.” such supra, p 39, Vermeulen, this said

In pro- "only communications are confidential privilege,” by the and that tected communication of the communica- "the nature and circumstances determining may whether tion considered confidential.” the communication was among It been said that the factors has confidentiality "may rebut a claim that serve to is "that the communication relates was intended”12 agree- transactions,” such as "business to business spouses, or about business ments between the agent one matters transacted conveyances.”13 property other, Profes- about explained "[u]sually McCormick sor (1887), Sebring, 66 also 33 NW discussed dissenting spousal opinion, concerned the and not in the communication (3d ed), McCormick, 80, p 193. Evidence 13Id., pp 194-195. 167 v Hamacher Opinion op the Court statements relate to facts are which intended later publicly to become known.”14 Hagerman Wigent, In 192, 194; v 108 Mich (1896), anticipated NW 756 mick’s rationale when it husband could this Court McCor holding, its

based that a testify that his wife had delivered a mortgage to him with instructions to deliver it nephews, after her death her to who were the mortgagors, on its assessment the circum expectation part stances "involved her disclosed,” the communication would be and there fore it "cannot be said have been confidential.”15

Implicit assumption legal obligation repay party is the intent that either may testify concerning transaction tions communica- relating to the transaction should the lend- ing spouse commence an action enforce the obligation legal money that arose when was bor- rowed. allegedly

The statement Hamacher made his wife did not concern a transaction "intended later publicly to become known.”

IV prosecutor The contends that Hamacher’s fail- object testimony prelimi- ure to to his wife’s at the nary precluded objection examination at the trial. prosecutor alternatively The contends that Ha- macher’s wife was rendered "unavailable” when privilege,16 and, he invoked the communication (1st Id., 195; McCormick, ed), 84, p Evidence 173. Estate, 346, 352; (1920), Doty In In re NW Eaton, supra, Court adverted to 'Hunt development its discussion identifying of the case law those communications are and are not confidential. 804(a)(1) provides: MRE "Unavailability as witness” includes situations which the

declarant— 432 Mich Opinion op the Court prior therefore, recorded preliminary read been examination could have 804(b)(1).17 jury pursuant to MRE prosecutor issue or waiver did not raise the brief in this filed his alternative claim until he preserve He the waiver Court. thus failed to either appeal.18 issue or his alternative claim for (1) ground exempted ruling of the court on subject testifying concerning of his matter from statement.... Love, supra, argument support passage in a in This finds 804(b)(1) agh, J.), (opinion that MRE but we observe of Cavan hearsay objection: applies it to a terms hearsay following if the the rule The are not excluded as declarant is unavailable a witness: (1) given Testimony. Testimony a as witness Former proceeding, hearing or in a of or a another deposition same or another testimony predecessor to tion. the same different compliance the of the whom the with law in course taken party against proceeding, if the offered, or, proceeding, a now in a civil action or interest, opportunity similar motive had an and cross, direct, develop testimony by redirect examina- the prosecutor in the trial court not raise waiver issue The did finding indigency assigned to lawyer, of on a when Hamacher’s represented preliminary replace tion, lawyer examina him at the who testimony concerning the objected at the trial to the wife’s prosecutor persuaded judge to allow the wife The communication. grounds testify on other than waiver. to alternatively prosecutor the waiver issue raise Nor did the arguments of response Appeals with the Court his brief filed to Hamacher’s appeal his from conviction. opportunity prosecutor to raise the issue when had a further The Hamacher, Appeals initially his affirmed convic- of after Court tion, appeal a application with this Court and still for leave to filed an petition opportunity for reconsidera- Hamacher filed when further (1986). appeal, He Court denied leave tion after this did so. do and, noted, reconsideration, previously vacated granted We Appeals, of remanded to Court judgment Court of of the Although doing that said in so Appeals we for further consideration. rja exception the communication no contained of the §2162 separated process or in the wife were a husband and where ruling judge’s predicates obtaining the trial of overruling divorce—one testimony—the objection wife’s at trial Hamacher’s People v Hamacher Separate Opinion Levin, J.

V Appeals correctly We conclude that the Court testimony held that the wife’s was inadmissible. judgment Appeals affirm We Court and remand cause trial court for newa trial. JJ.,

Brickley, Cavanagh, Archer, con- J. Levin, with curred (separate opinion).

Levin, The Court’s conclu- prosecutor preserve sion that failed to either appeal the waiver issue his alternative claim for unnecessary makes to consider lawyer object whether the failure of Hamacher’s preliminary to his wife’s at the exami- precluded objection nation at the trial. dissenting opinion case discusses law con-

cerning privileges, waiver of testimonial and "con- clude^] that the defendant’s failure to assert spousal operated at that examination general privilege.”1 a waiver opinion dissenting

The states that the confiden- tial waived, communication can be I and prosecutor did not in raise waiver issue his brief filed on remand Appeals. to the Court of Appeals After the Court of on remand reversed Hamacher’s convic- tion, prosecutor application appeal an filed for to leave with this which, again, not did raise the waiver issue. This order Court’s granting appeal issues, prosecutor leave to did not limit the and the raised the waiver for the in in issue first time his brief this Court. lawyer respond Hamacher’s did his brief this Court to the During argument, justices waiver issue. one of oral Ha- asked lawyer response. lawyer macher’s whether he had a Hamacher’s said prosecutor appeal. that the had raised the for issue the first time on 1Post, p 193. 157 432 Mich

170 Opinion Separate Levin, object however, agree.2 not, neces- A does failure precluding sarily assertion a waiver3 constitute right trial.” If it were a "new at a general a not be that otherwise, rule would objection ordinarily object bar does not failure trial.4 at a new

i upon general trial5 the rule new The is it not been novo "as if had retried de case is be 2 lawyer’s Appeals failure has held that a defendant’s communication The Court of privileges spousal constitutes issues to raise the Stubli, App People v 163 Mich of counsel. ineffective assistance (1987), lawyer 379; failed to assert 413 NW2d 804 where defendant’s Armentero, Similarly, privileges v 148 the trial. see the Mich Court of the failure to assert at (1986), 120, 124; App on from the 98 where remand 384 NW2d hearing evidentiary Appeals trial court found that preliminary privilege” at the "marital requiring a of counsel ineffective assistance examination constituted trial. new regarding assistance of counsel ineffective same standards Sullivan, 335, 344-345; Cuyler apply 446 US See v to retained counsel. (1980). 1708; 64 L 2d 333 100 S Ct Ed 3 by courts as short is sometimes used While term "waiver” waiver, binding party object, a failure a true hand to describe trial,” relinquishment voluntary of a an intentional and a known is "new right ff.; CJS, Waiver, Kelly Allegan pp general Circuit 92 104 v See in Proctor, 425, 427; (1969);Maxey Judge, v 343 NW2d 916 Mich (1955); Margolis, 457; Krakowsky Mich 72 NW2d Works, (1931); 3, 6; Dow Co v Detroit Chemical NW 28 Chemical (1919); Metropolitan 157, 172; Couper v Life 175 NW 269 208 Mich (1930); Co, Book Furniture Co v 230 NW 929 Ins 250 Mich (1958). Chance, 521, 526-527; 90 NW2d accompanying 6-7 text. ns See might regarding instant case rule be stated Since whatever privileges surely applicable at a would the waiver testimonial developed following appeal, precedents new trial the question occurred reversal although in the instant case the trial context are relevant new object appeal trial failure to from the first and the arises on preliminary examination. at the preliminary does not become examination The record at except introduced in part evidence witness’ the to the extent the trial record trial and the is unavailable at the a witness where objection subject evidentiary than is not 804(b)(1). hearsay objection obviated MRE 171 v Hamacher Separate Opinion by Levin, J. prejudice party”; tried before to either and without parties ordered, a when "new trial started again pleadings.”6 Evidentiary objec from their may trial, tions that were not voiced at an earlier be asserted at a new trial the other unless side 7 prejudiced thereby. be would dissenting opinion general asserts that inapplicable object privi- rule is to a failure to leged testimony because the "confidential commu- privacy nication acts to hold inviolate the relationship. of might marital When facts which privileged otherwise be are disclosed for all inspect, purpose is de- stroyed. unring bell, a Just as one cannot a secret Minnesota, Co, 685, 688; 6 Kruk v & S S M R St P 249 Mich 229 NW (1930) (the plaintiff position estopped by 479 was not taken at a pleading preemptive trial from former cause of action under a appeal statute first federal held in the to have his claim barred based statute); 1, 5; City, a state v Bathke Traverse 308 Mich 13 NW2d (1944); Detroit, (1949). 644, 648; 39 184 Vukich v NW2d 212 See, Practice, 41.40, generally, Pleading 41.41, Michigan pp 6 & §§ 582-584; Practice, Michigan 6, pp 18 &Law 142-143. § 443, Press, 449; See also Bowerman Detroit Free Mich v 287 283 (1939) (the plaintiff permitted 642 NW had not been "to take a position trial”); inconsistent with that assumed on the first but 489, Hassberger Co, Supply 496; see v Bldrs’ General 213 182 (1921) (the position judicial 27 NW taken in trial the first was a estopping party taking position admission from an inconsistent trial). the second 7Prejudice may be found where the witness unavailable for the objection trial second and the basis could have been obviated had it voiced at been the earlier trial. See, 2d, 742, generally, Evidence, p 812; McCormick, Am Jur § (3d ed), 259, Co, Evidence 770. See (because & Petrie v Columbia G R SC 303, (1888) novo, 7 SE 515 "a trial de new tried is trial,” just previous conducted is mony as if there had been no the testi anew, and other evidence offered "when is so offered it necessarily any legal exception subject may becomes which Ross, 91, (SC it”); App, 1985); taken Clark v SE2d Morrison Lowe, 358, 361-362; (1981); Calley v 274 Ark 625 SW2d 452 v Boston Co, 359, 362-363; (1945); M R & NH 42 A2d 329 Aetna Ins Co v Koonce, 265, 268-269; Fredette, (1936); 233 Ala State v So 269 1983). (Me, Jaques, A2d (SD, 25-26 See also 256 NW2d State 1977). 157 432 172 Levin, Separate Opinion again a never court is open disclosed in once private matter.”8 wholly

ii dissenting opinion in a footnote dismisses The Knights v in Briesenmeister this Court’s decision (1890), stating Pythias, 525; 45 NW 977 of of the on a decision relied that Briesenmeister already Appeals had been York New Court York New a later decision overruled Appeals.9 Court supra, p 534, trial Briesenmeister, court

In phy- granted plaintiff’s a to strike motion had physician- testimony on the basis of the sician’s patient testimony Some of stricken privileged, ordered new and this Court was trial. Although plaintiff’s motion to strike completion physician’s testi- came after privi- acknowledged mony lege this and Court is is must be claimed "before privilege, admitted, it to be a and ceases objection waived, is made to the intro- where no of the supplied), (emphasis testimony” it duction nevertheless that, new trial had ruled at the privi- again plaintiff ordered, assert the could lege. disagreed rationale of the Court with the

The Appeals, York of the New later decision McKinney Street, Co, F R 104 Grand PP & NY v (1887). McKinney, 544 In the court said 352; 10 NE object at a trial there is failure to that where published communication the confidential 8Post, p 194. Clark, opinion dissenting relies on statements State v The 1980). (Minn, 372, 373 NW2d Co, Metropolitan to are Life Ins decisions referred Grattan Street, (1883), 274; McKinney v Grand PP & 44 AR 92 NY (1887), Co, NE discussed below.

F R NY People v Hamacher Separate Opinion by Levin, J. " court, 'no further can injury upon be inflicted rights and interests which the statute in- protect, tended to and there is no further reason ” Briesenmeister, its enforcement.’ supra, p 535, quoting from McKinney.10

The Court responded "argument loses sight of rights one of the conferred statute. Privilege includes both the security publi cation, and right to control the introduction evidence, of such information or knowledge com municated possessed to or by the physician.” added.) (Emphasis The Court continued: right although The latter exists the former has any public ceased to be of but may know; beneñt. The jury permitted shall be to receive and weigh testimony derived from a source which the put law has upon, seal of silence unless re by party leased right who alone has the to say particular whether that witness shall be the me conveying knowledge dium of jury? such For instance, the party may have disclosed to a third person Now, all that he physician. has to his while proved may proper admissions in a manner by person, they proved such third cannot be physician against objection party.[12] [Emphasis added.] The court concluded that an earlier New York case, Co, Grattan Metropolitan Life Ins 92 NY (1883), 44 AR 372 "lays down the better rule.”13

The Supreme Court Of Iowa reached the same Burgess Co, conclusion in Drug v Sims 114 Iowa 10 104NY 355. 11 Briesenmeister, supra, p 535.

The the basis that 13Briesenmeister, supra, ^[12] Id. Briesenmeister, Court, McKinney had indeed overruled Grattan sub silentio. 536. The Court was thus fully aware of decided McKinney. question 432 Mich 157 Separate Opinion Levin, J. citing Briesenmeister (1901), and

275; 86 NW 307 Grattan it did not approvingly. The court said McKinney. reasoning in agree with con- similarly of Arkansas Supreme

The cluded, opinions” the "well considered citing Burgess, Briesenmeister the failure to the introduction object one trial right not waive the ground on the did of the subsequent at a trial objection make not been adversary had- same case where Maryland Casualty object. failure to misled Maloney, Co v 434, 441; SW 387 Ark (1915). Briesen- Appeals similarly Court of has read

meister "the recognizing dual nature conferred,” securing [physician-patient] " to con- 'against publication, right both ”14 . . .’ . trol the introduction evidence iii Clark, 296 NW2d 372 (Minn, 1980), In State v dissenting opinion, the Minnesota relied on in the any stated its conclusion without Supreme Court McKinney, Briesenmeister, Grattan, discussion of Casualty, Burgess, Maryland case decided,15 discussing there with "cf.” the issue 14 Co, 576, 597; App Beasley 282 v Grand Trunk W R 90 (1979). Co, Similarly, Ins 99 Seaton State Farm Life NW2d 401 Mich see v (1980). 587, 590; App 6 299 NW2d 15 Wigmore on Evidence that does not The court cited a section of article, decided, and a the a Minnesota law review advert issue spousal, Supreme concerning the the decision of United States communication, privilege. not the Ins, Charity Life 819 F2d v Fireman’s Fund American Cerro Gordo (CA 8, quite understandably 1987), construed Minnesota law and 1471 187; Bishop, Super 453 A2d 1365 In State v 187 NJ followed Clark. (1982), waiving thereby his Fifth the took the stand defendant 425, 439; Mincey, Ariz 687 P2d State v 141 Amendment (1984), Bishop recognizing the difference relied on without 1180 object a mere and affirmative use of between an failure trial. earlier People v Hamacher Separate Opinion by Levin, States, 139, citation of Fraser v United 145 F2d (CA 1944), similarly where the court an- any nounced its conclusion without consideration prior of the case law and indeed without authority citation of whatsoever.16 The current authors of McCormick Evidence write that the questionable.”17 conclusion in stated Fraser "seems McKinney readily and Grattan are reconciled: McKinney, person claiming privilege In the the physician had called the as a witness at an earlier affirmatively privi- trial and thus had waived the lege, in while Grattan there was no evidence that person asserting privilege the had called the

physician at an earlier trial.18 by This was but one of several alternative bases of decision stated concluding prevail court in the equitable ited that the defendants should in an concerning right money depos action that had been court. 17McCormick, (3d ed), 83, 198, Evidence n 5. Iowa, Supreme Andrews, Kelley The Court of v 102 Iowa 122; (1897), distinguished McKinney noting 71 NW 251 on this basis case, party having right object that the that introduced "[i]n privileged party.” evidence. In this case it was the other dissenting opinion cites four other New York decisions. Ettinger, 876; In General American Life Ins Co v 266 AD 42 NYS2d (1943), court, half-page, four-paragraph opinion, in a stated person asserting separate had a action company instituted another insurance waived the privilege, the instant action another operated and declared that such waiver also as a waiver in company seeking an insurance to rescind policy of insurance. (1984), 416; Postley, In In re Misc 2d 479 NYS2d 464 it was asserting person held that where the statement tor not be asserted in a later-contested had submitted a signed by physician proceeding to have a conserva appointed, physician-patient privilege and could waived probate proceeding that included seeking claims to set aside inter vivos transactions. (1978), Lowe, judge In Misc 2d NYS2d 873 psychi discovery complainant’s medical records and a ordered stating complainant complainant atric examination voluntarily thereby inquiry stated and waived further into his had mental condition when he testified he suffered some brain damage thinking impaired and communication abilities. which his Appeals that The court relied on a decision of the New York Court of where personal injury patient in a action tenders the issue 432 157

176 Mich by Separate Opinion Levin, J. People Toner, 640, 644; 187 NW v 217 Mich In (1922), dissenting opinion, also cited in the 386 similarly post, p that 193, this Court declared witness he called his wife as a "[w]hen defendant privilege.”19 thereby waived his privilege physician-patient context, the In the sup patient generally to needs medical generally port has that claims in an action he privilege physician-patient has commenced. The by York case law and statute New been limited by court rule this statute and state.20 privi- physical jury, physician-patient he condition to the waives Hethier Johns, 370; 260; lege 135 307 exist. v 233 NY which otherwise would (1922). Al-Kanani, Similarly, People v 33 NY2d NE 603 NE2d 43 (1984). see (1973); Wilkins, 957; People 101 AD2d 477 NYS2d v (1908), Bloom, 10; plaintiff People brought In v 193 NY 85 NE Metropolitan Railway had Company examined him and who had been called without an action Street damages physicians permitted had recover four who to testify to the defendant perjury objection. The later trial was for the offense plaintiff personal injury allegedly The in the action. committed permitted physicians "intentionally” to that court said Bloom testify: intentionally permitting publication”; its "but he inten- "After relinquishment tionally of a known it.” An intentional surrendered right is a waiver. dissenting opinion cites of this Court. two decisions (1883), only Morgan, held that the Benson v holder had NW complain appeal because he could not direct by timely objection. preserved could the issue Briesenmeister 9.) (See following proposition n of law. text be cited for same Co, 187, 192; Fire 123 NW In O’Toole v Ohio German Ins (1909), communicating 795 spouse the Court concluded that letters from the finding on the of a that husband were admissible basis affirmatively had not delivered whom the letters had been entrusted them the third from there was found them. "escaped” party. that the had The Court said letters clothing and floor and husband’s were found on the person who no between the husband and collusion communicating spouse suggested It has been misdelivery writing distinguished risk of of a assumes the loss betrayal due or connivance of from disclosure (2d ed), 168; (3d ed), McCormick, 82, p whom delivered. Evidence § 82, p 197. Toner, Benson, nor issue In O’Toolewas there whether neither case, proceeding. objection in a could be asserted later trial or by the commissioners on Uniform State The rule recommended provide physician-patient there is Laws no would Hamacher Separate Opinion Levin, IV Section 2162 of the Revised Judicature Act does purport disclosing a to bar from a wife, confidential communication. Hamacher’s violating § 2162, related the without statement she attributed to her husband to social service work- police prosecutor, ers, officers, the and could have newspaper reporters. done so to and other She gone nightly could indeed have on the news and made a full statement of the confidential commu- violating § nication without 2162. The "secret” longer then no have been would secret "never again private wholly Nevertheless, a matter.” despite there can be no doubt that the wide com- large "secret,” munication to the world at not, § 2162, Hamacher’s wife could consistent with regard "be examined” in court with to the commu- nication. concerning a communication relevant to an issue the condition of the patient any proceeding in in which he relies on the condition as an Evidence, 503, of his claim element or defense. Uniform Rules of Rule 13A ULA 277-278. Michigan provides statute now a more limited waiver than the provides statute considered in Briesemneister. The statute now that patient brings personal injuries

where the an action to recover for or malpractice, privilege for all he shall be deemed to have waived the for physicians produces any physician who have treated him if he as a 600.2157; witness his own behalf who has treated him. MCL MSA See, (2d generally, Michigan Pleading ed), 27A.2157. & Practice & Practice 37.117, (2d ed), Michigan Pleading 440. See also 9 § 65.108, p concerning provision of the automobile no-fault act. Martin, Webster, Michigan Practice, p also Dean & See Court Rule 2.314(B)(2), discussing providing party generally may MCR that a present relating history not mental or tion is introduce evidence to his medical physical if condition he asserts that that medical informa- subject privilege to a and the assertion has the effect of preventing discovery of discoverable medical information. statute, Appeals, construing The New York Court of its had held Johns, decided, insured, supra, Hethier v n 18 was after calling treating physicians. Steinberg treating physician, had waived as 263 NY Co, v New York Life Ins (1933). 188 NE 152 Separate Opinion Levin, J. V Wigmore so-called propounded Professor privi- the testimonial justification utilitarian requires encouragement leges: "public policy relation- without which these the communications effective.”21 Professor McCormick ships cannot be disagreed.22 revision of Professor McCormick’s

In the current work, in the dis- rationale set forth privacy advanced, and at time senting opinion is the same rationale acknowledged unlikely it is this mind when was legislative acknowledge they hope authors also enacted.23 The result adoption of the rationale will privacy of the communication ultimate abolition privilege.24 the ration- relationship”

The of marital "privacy might Legisla- assessed the appropriately ale be ture, revising RJA or were it to consider § Court, to of upon this take itself the task were in the exercise reshaping privileges the testimonial concerning rule-making power and practice of its consideration, Legisla- Upon such the procedure.25 might "logical conclude that the ture or this Court (3d ed), 72, McCormick, p 171. Evidence § 22 Probably policy encouraging of not the the confidences is creating maintaining prime privilege. the It is and influence really a natural and less devious matter. It is a much more feeling All of us of of matter of emotion and sentiment. indelicacy have a prying into and want of decorum the secrets (1st ed), 90, p [McCormick, husband and wife. Evidence § 179.] origin, comparatively this Given recent latter rationale its probably operated basis as a conscious for either has existing judicial judicial legislative privileges. Today’s creation of however, bottles, tendency pour old new wine into theory may subsequent development mick, a in the serve make the nonutilitarian factor thinking of about [McCor (3d ed), 72, Emphasis 172. Evidence § added.] (3d McCormick, ed), 86, pp 202-203. Evidence § 6, 5. Const art People v Hamachek Opinion by Levin, Separate implications”26 adoption privacy rationale incompatible goals are sought with societal fostered by privilege, be the communication espe cially if the ultimate logical implication is the altogether abolition of the communication privi lege. Legislature might, upon this Court reassessment,

a adopt also conclude that main- as tenance a rationale for the secrecy marital communication or other privileges testimonial unnecessarily enlarge scope could privi- leges encourage and en- litigation—unnecessarily large because a literal reading of communica- barring tion privilege, as from "be[ing] examined” in regarding communication, court quite adequate language therefore ex- pressing privilege does not need tinkering. events, not, In all long courts should statutory they purport to be expounding privi- lege, adopt rationales that cannot be found upon legislative reference to the history privilege, propounded acknowledged revisionists— respected they whether scholars like Professors Wigmore McCormick, successors, their current or other might provide advocates—that a juridical decision, basis for accomplishing by judicial “pour- bottles,”27 new ing] wine into old which nei- ther nor Legislature this Court has been will- undertake, ing of the communi- unraveling cation ad hoc and ad hominem. declaring

The courts no basis for have protect in 1861 statutory purpose was to the se- crecy of the communication when the statute itself purport does not to do so. There is no clearly basis concluding in 1989—over hundred twenty- one the years legislative after enactment—that five McCormick, nSee 23. Evidence (3d ed), 86, p 202. Mich 157 Opinion by Boyle, J. Dissenting literally purpose the stated than in 1861 was other "be[ing] spouse precluding purpose the from in court. examined” expressed legislative being intention, no

There spouse may implied, be examined once that the or longer private no disclosed and it is the secret is matter, being only expression in statute may examined,” not this "be the witness well-regarded decision well-considered Court’s Bries- not be overruled. Briesenmeister should justices served on was decided who enmeister this the testimonial relatively soon after enactment privileges and who thus were more sitting judges justices likely presently than any "secrecy” "privacy” been aware have rationale intended unstated but nevertheless Legislature. (dissenting). majority today Boyle, exceptions con- the conclusion reaches 600.2162; MSA 27A.2162 do not tained MCL spouses. apply to communications between harmony mere of marital becomes Preservation willing testify spouse one is where rubric the circumstances described another demeaning Worse, it is cruel and the statute. justified by purpose pro- other than to no fiction having of the adverse interest mote no effect case, save, as in this to obstruct fact- process finding in 1989 and to remind us that even equal all before the law. we are §Act be con- Judicature should Revised privilege inapplicable so as find strued exceptions purpose statute because general disability; the to remove common-law public policy of state to accord married this subject equality only law, full before women policy Legisla- paramount by deemed interests People v Hamachek Dissenting Opinion by Boyle, J. ture; and, of where one situations listed occurred, statute has damage has been done to the marital far relationship shocking more than re- vealing a situations, communication. In these Legislature has determined that of protection mar- ital is privacy a less important societal interest than the right to a testify fully as violation of civil or criminal rights. long

As ago as interpret- the context of ing predecessor statute which provided exception in of spouses cases an action between involving the title to separate property, this Court held that the exception applied The Court found that the identical words we con- sider either, shall today, during the mar- "[N]or riage afterwards, both, of without the consent be examined as to any communication made by other, one to the during marriage,” allowed a to testify wife as promises made her privacy of their chamber and no with one else present. In applicable case, words to this equally the Court stated: statute removes disability the common-law [T]he permits

and either to testify to the facts which lie at the foundation ownership property of the fully as if marriage as relation did not exist. either, The clause of prohibiting during the statute marriage afterwards, without consent both, being examined as to communication marriage, made one to the during apply does not to cases of this kind. No doubt is society preserving interested in harmony marriage anything and relations disrupt which tends to discountenanced. The Constitution has secured to those to be relations right acquisition, enjoy- married woman the disposition ment separate property, 432 Boyle, Opinion Dissenting standing in Legislature given her same has respect if she were thereto as the courts with unmarried; good why no reason she and there is protecting those the means of should not have against any rights fully her husband person. the destruction ... So far as concerned, the in the circle is harmony family husband or wife injury inflicted when the fail[s] ., agreements . . and the strife and keep to their long precede the bickerings consequent thereon testify to by permitting party shock caused respecting v property. title to [Hunt (1884). Eaton, 362, 365-366; 21 NW 55 Mich Emphasis added.] majority in Hunt the decision dismisses exceptions application of the

based not on the privilege but, rather, the communications not confi- that involved were idea statements they transactions. dential since involved business ignores interpretation that the Court This clearly the fact the communica- in Hunt that concluded apply privilege simply to "cases did not tions it did would kind,” "[t]o this hold that language nullify great which in a measure excep- upon precedes make a limitation it and my opinion Id., tion none was intended.” where arguing by majority Indeed, case, 366. this not confiden- that the in Hunt was communication ignore apparently tial, the statement chooses Champlin he did "not consider Justice necessary of the communi- to indicate the nature which about cations between husband and wife . .” . . Id. neither is to be examined allowed interpreting 1887, amendment In excepted the cause cases "where statute which grows wrong injury personal action out of other,” 1885 PA done one to said: People v Hamacher Dissenting Opinion Boyle, only

Not justice, public policy the ends of but alike, require liberty that she should complain prosecute if she were a feme sole in criminal cases. The law will allow the marriage protect relation be so used as to criminal, just or shield him penalty from the his crime.

Thus it policy will be seen it is of the right law to extend the towife bear testi- mony husband cases of violation of personal rights,- rather than restrict it. [People Sebring, 33 NW 808 (1887).]

Despite these of policy venerable statements regarding purpose of the statute ex- and the press holding that the communications did not to apply the statutory exception, the ma- jority concludes Legislature, that our enacting Revised Judicature in Act intended to permit a defendant spouse to silence his wife the situations excepted Surely statute. a contemporary Legislature cognizant as of notion "that good there is no reason she why should not have the protecting means of [her] rights against as fully against husband as person” and that injury marital relationship is done when the "personal wrong or (or injury” "crime committed against children both”) of either or 600.2162; occurs. MCL MSA 27A.2162.

To presume a enlightenment sunset of in a Legislature that has a repeatedly demonstrated commitment to a legal woman as "feme sole” a Dissenting Opinion Boyle, agree ignore history.1 I cannot

matter reimpose Legislature the common- witness, intended willing2 disability prevent a usu- and law ally fully "testifying] if woman, ... a from marriage not relation did exist.” public policy, Despite prior precedent, and sound simple justice, majority that, of for want holds deprive Legislature semicolon, intended a right testify as to her hus- this mother daugh- contact with her to sexual band’s admission disagree the decision ter. I the and would reverse Appeals.

i privileges can traced to The marital possessing period history woman, no our when legal identity own, as the of her was treated identity unity of be- chattel husband. The of her affirmed and advanced tween and wife husband perceptions. Consequently, two can- these cultural play. jurisprudence came into ons of medieval permit- [F]irst, the rule that accused was own behalf because of testify ted interest in his second, concept proceeding; in the one, wife since husband and woman had no were existence, legal recognized separate two now one. From those the husband was that long-abandoned doctrines, that what followed lips of the defendant- from the was inadmissible his wife. from was also inadmissible husband prosecu- permit Legislature sexual assault In acted to living apart parties one or were tions a where divorce, separate MCL maintenance or had filed for 750.5201; 28.788(12); permitted,such actions between it now has MSA limitation, PA 138. legally spouses, 1988 married without willing testify against spouse the other exceptions permit a (1986). 691; They Love, do spouse. People 391 NW2d require testimony. not such People v Hamacher Dissenting Opinion by Boyle, States, 40, 44; v United 100 S Ct US [Trammel L (1980).] 63 Ed 2d 186 simply, disqualified Quite a wife was from testi- fying against practice her husband.3 This later gender-neutral a became rule of exclusion. When general disqualification this rule of fell into disfa- replaced by vor, it was exclude spousal testimony. Developments Id. See privileged law, communications, 1450, L Harv R (1985). passage 1563-1565 With the of 1861 PA Michigan compe- codified the rule of conditional spousal tency lege protecting separate privi- or bar enacted a judicial pro-

from disclosure at a ceeding all confidential communications between spouses during marriage.4 Thus, made privi- term marital refers to two distinct leges: right testifying to bar the from Michigan Early spousal disquali statutes contained form such a fication. See 1857 CL 4339: person giving any No shall be excluded from evidence in

matter, criminal, proceeding, crime, or suit civil or reason of any person question, or of interest of such in the matter in or proceeding in the event of the suit or in which his offered, may named in the unless such person individually party, be such unless be record, matter, proceeding, to such suit or or matter, proceeding prosecuted or suit be or de- fended, part, wholly either or in in the immediate individ- person, person ual behalf of such or or unless such be the husband party; person party, may wife of but when such is a he prescribed by [Emphasis be a witness under the rules statute. added.] See PA 4342: against A shall husband not be examined as a witness for or wife, consent, without her nor a wife for or husband, marriage consent; either, during without his nor shall be, afterwards, both, without the consent of exam- any during ined as to communication made one to the other marriage; proceedings the husband but in action or instituted consequence adultery, wife in the husband and competent testify. wife shall 432 Mich by Dissenting Opinion Boyle, J. revealing spouse the from right prevent the and communications. confidential a is spouse of testimony to bar the privilege The marital prevents that it the basis defended on incompe of of the rule It is an offshoot discord. Love, 691, People v tency. J.). (1986) The Cavanagh, (opinion of

NW2d is said to privilege communications confidential McCormick, Evidence marital confidences. inspire (3d time, ed), 86, case law has 201. Over p § and is sometimes ob justifications, blurred the privileges of both rests on the validity served that marital harm ground promoting of the utilitarian communications, supra, pp Privileged ony.5 See Love, supra, (opinion of 1578-1579; n J.). Boyle, centers on privileges of marital

Criticism both the conflict with they jurisprudential the fact that truth-finding function. advancing the objective of quoted justification, one commentator has In to this often addition grounds the continued life of the additional identified' three marital promote privileges. privileges said to are sometimes The right allowing protection privacy. rights by individual force, power contempt court is as an intrusive and of the viewed having spouse to choose to shield other from one is allowed spouse. loyalty loyalty is to one’s This view to the state and between by in such a case the who would observe that criticized those often valuable evidence is is with the witness because too better vested testify spouse voluntarily against the other. would lost when one ground Similarly, privileges justified that are the marital compel avoiding whereby forced one a court is the situation other, public’s judicial testify perception of the this to system however, argument respond, is Critics enhanced. denigrate popular the law and could work to awareness of assumes the defendant-spouse public’s perception system avoids of the when willing spouse testifying. prosecution by preventing a from privileges perpetuate they explanation role final of the is A marriage. is claimed because in the It male domination privileges of his more invoked husband bar are often wife, privileges often than women will benefit men more solidify perceptions legitimize social and marriage serve to will quo of women the subordinate view status and reinforce relationship. historically of marital in the male domination rooted knowledge popular of the marital view This assumes People v Hamacher Dissenting Opinion Boyle, As observes, Professor McCormick "while the dan ger from injustice suppression of relevant proof certain, is clear probable benefits of the rule in encouraging marital confi dences and wedded harmony at best doubtful McCormick, and marginal.” supra, p 202. Thus, even at common law spousal bar was withheld from the in prosecutions husband for wrongs directly against the wife.6 Similarly, when in this country statutes were providing enacted for privilege communications, confidential exception to confidential privi communication lege incorporated was and frequently extended in involving cases wrongs against a spouse, particu larly of a violent those nature.

As explains: Professor McCormick against The privilege common law adverse testi- mony subject exception of a was to an prosecution cases of of the husband for offenses wife, those least of violence. When century country nineteenth statutes in this limited regulated and this and the incompetency spouses as witnesses and defined the new statu- tory privilege for confidential communications exception common law above mentioned usu- ally incorporated extended, and frequently exceptions were added. Under these statutes always exceptions is not clear how far the are apply provisions intended only limiting competency spouses witnesses, they apply whether dential also for confi- however, Frequently, communications. decision, of a contrary absence it is at least arguable exception that does have this latter application, and in some intent instances this would, clearly expressed. Any prin- other result ciple, justify. indeed difficult to [McCormick, supra, 84, Emphasis pp 198-199. § added.] 6 rev), Wigmore, (McNaughton pp 8 243-247. Evidence § Boyle, Dissenting Opinion the marital recognized that

This Court also has public the maxim "the contrary to stand privileges Love, . . evidence . right every man’s has J.); Wigmore, supra, p (opinion Boyle, rev), 70. There- (McNaughton Evidence recognized privi- consistently have fore we leges accepted strictly "only

must be construed permitting limited a refusal very extent excluding evidence has testify relevant predomi- public good transcending normally utilizing all rational means for principle nant [Love, supra, pp (opin- 700-701 ascertaining truth.” Boyle, J.); J.); p (opinion Cavanagh, ion of Co, Fire Ins see also O’Toole Ohio German 187, 193; (1909).] NW A construction of statute is majority’s excep- that unambiguous statute testimony to a spouse’s to the bar tions confidential communications. One apply do not to prevent permanently now spouse may apparently confidential communi- from to a testifying another proceeding spouses in a which cation civil (such divorces,” parties adverse "suits for are to the involving separate prop- the title and cases wife, or in cases of of the husband erty "crime[s] both,” or the children of either against committed of action those cases "where cause and to wrong personal injury of or done grows out other”). one our us conclude that analysis requires

This extend even common-law Legislature does not spouse against of exception for crimes violence v Hamacher Dissenting Opinion by Boyle, confidential unwilling communications. I am ascribe such an intent to our Legislature.7

As the interprets Legislature’s in- majority tent, a wife is allowed to at her husband’s testify trial for the daughter, sexual abuse of but the her exception does permit testimony not extend to her concerning Thus, his admission of the assault. the retrial today, ordered will not be jury allowed to learn explanation of defendant’s his wife as why this assault and will occurred required be to resolve this the basis issue on of testimony of a child who eight years old at the time of the alleged occurrence.

Assuming the Legislature that created marital privileges to promote marital and mari- harmony I privacy, agree tal cannot the Legislature that enacted this statute in 1961 found these interests so paramount as to relevant proof bar all private involves a communication between spouses. To do so would leave women and their children without protecting means of their rights against "as fully against husband Eaton, Hunt supra, person.” 366.

As Wigmore Professor observed discussing exception common-law to the spousal bar: the promotion peace, of marital and the [I]f dissension, apprehension marital are the ulti- mate ground privilege, overgenerous it is assumption beaten, wife who has been poisoned or deserted is still on such terms feeling good delicate with her that her not be must enforced lest the iridescent dispelled peace halo of dispar- breath were, aging if testimony. And there conceivably, divorce, Specifically, excepts bigamy, cases crimes both, personal wrong injury the children of either done other, spousal support, by one to the failure of or child desertion and abandonment, dealing disputes and certain cases over with the title to property. Boyle, Dissenting Opinion peace such as the peace, would it be

any supra, protect? Wigmore, law could desire [8 2239, p 243.] B support act reading appears A literal However, result. statute majority’s with reading is not consistent ambiguous and this Eaton, supra, Hunt v with holding this Court’s accepted "privileges should be axiom exceptions broadly and thereto narrowly defined Love, People supra, p v construed,” 700, nor with recognized long-established policy and right "to of the wife bear testi- law extend .. . rather than to against the husband mony supra, p 707. it,” Sebring, restrict than seventeen amendments After no less marriage privileges spanning reenactment of legislative and fifty years one hundred nearly guides these despite action and well-established Champ- construction, rejects Justice majority the "statute removes statement lin’s disability permits either tes- common-law marriage relationship if such tify fully ... exist,” punctuation not on the basis did Eaton, supra, 365. the statute. Hunt v passage dealing amended When semicolon, split bar was with spousal with newly from the separated and that clause was title a comma: property exception added witness, as a A husband shall be examined wife, consent; nor a without her for or husband, wife, against without his con- for sent, .... PA except in cases 84.] [1869 in the punctuation is maintained manner That present statute. v Hamacher Dissenting Opinion Boyle, J. majority, assume,

If we are to as does the Legislature the intended this semicolon as a defi- demarcation, nite we must also conclude that exceptions apply only in the instance where a wife testify against is asked to husband, for or her but testify not when a husband is asked to for or against course, his wife. Of such a conclusion is wholly unjustified. grammar punctuation

Furthermore, if the legislative §of 2162 is as indicative of intent as the majority significance believes, the of 1897 PA 212 provided: should not be overlooked. Public Act 212 That a may husband testify against for or consent, wife without her may and a wife testify against for or consent, husband without his all prosecutions, criminal Provided, for bigamy: however, nothing That herein contained shall be so testify permit construed as to a husband or wife to the other without the consent of concerning both to the communications made one during marriage. All parts acts or conflicting of acts with the provisions of repealed. this act are hereby [Empha- sis omitted.] exception bigamy prosecutions When this incorporated general into statute express proviso 314, XVII, 1915 PA § 67, ch precluding spousal testimony concerning confiden- Leg- tial communications was eliminated. Had the exceptions islature intended listed in the act to apply only spousal privilege, testimonial proviso emphasizing intent should have sur- proviso, logical vived. In the absence of the Legislature conclusion to draw is that the intended exceptions apply privileges. to both The majority, proviso effect, reads a into the act contrary none where exists and draws a conclu- Dissenting Opinion Boyle, majority manner, finds that In this sion. unambiguous” § nature of both "clear and opposite result and forecloses commands purpose. explanation legislative reasoned c justification for the communication encourage protect harmony and mari- is to tal communication. marital exception Each statute Legislature represents has instance where harmony against in marital balanced a cating majority interest fully competing overriding in vindi- interest spouse’s rights. party or the witness Legislature’s purpose in on the focuses permit- today spouse that one is 1861 and assumes uphold completely the other to ted to integrity opinion, silence Justice of marital confidences. Levin’s my pp proper focus, ante, 179-180. The in Legislature’s purpose view, in 1961 be on the should recognized instances, when it as certain spouses adversaries, civil cases in are which involving both, to or cases or those in which a done harm a child either

personal wrong injury privilege another, to must one probative yield for in order to the need evidence8 rights controversy.9 to vindicate

ii exceptions §2162 Even if the listed in do not Code, Various statutes are accord. See California Evidence 504, providing exceptions ULA to the confidential 13A § communication either privilege against a for crimes committed child of McCormick, 78, 189, 10,190, supra, spouse. n n 16. See § light in Love In of the fact that this Court declined invitation rule-making authority, abrogate pursuant to our there to § legislative policy appears no consideration of issue to be barrier exceptions apply contained in § as whether when privilege adoption of or to the view the confidential communications privilege spouse, in the witness MRE in Trammel which vested 501. People v Hamacher Opinion by Dissenting Boyle, privilege, apply confidential communication privilege when he defendant Hamacher waived testimony object at his to his wife’s failed long preliminary This Court has examination.10 privilege recognized "is the communication parties may . . . and be Morgan, supra, p O’Toole, v Benson waived.” (1883).11 77, 79; 14 Such waiver NW Wigmore, supra, implied. express may be Implied pp found in waiver was 671-672. Morgan, supra, a husband who v where Benson object present when his wife in court failed to Similarly, testify him. was called to 640, 643-644; 187 Toner, 217 Mich NW (1922), that when a de- this Court concluded defense, in his calls his wife as a witness fendant perti- privileges as to all are waived the marital facts, need and cross-examination nent examination. elicited on direct limited to facts call his wife as a defendant did not Here the object witness, did fail to but he preliminary I conclude would examination. spousal failure to assert the defendant’s gen- operated as a at that examination privilege. waiver of the eral privilege may reasserted waived, not be a Once pro stage same defendant at a later a proceeding.12 subsequent judicial ceeding or at Wigmore As Professor states: 10 justifying privilege by the use a witness anno: Claim of See preliminary testimony given former trial or on a criminal case of bis examination, 3, 1355-1359; anno: Use subse 1354, pp 45 ALR2d § given self-incriminating testimony in without quent prosecution of voking privilege, 5 ALR2d 1404. 11 2340, 671, spouse possessing Evidence, Wigmore, "The 8 § See original.) (Emphasis in the For of course waive privilege may it.” the it is "the essence may (as privilege) every it privilege of the . . . Id., 2334, p 645. be waived.” 12 372, (Minn, 1980); Clark, See, 373 State v generally, 296 NW2d 432 Mich 157 194 Opinion Dissenting Boyle, A at a former trial should a claim of waiver bar trial, privilege at a later [physician-patient] original away for all the the privilege. preserve only. disclosure takes once and confidentiality sought protected by To enforce thereafter is to seek to legal privacy a which exists fiction §2389(4), Wigmore, supra, pp 860-861. [8 Emphasis original.] in the I see no reason to conclude that this rule should proceedings not to former in the apply equally Thus, trial as as to former same well trials.13 a failure the holder to assert privilege by objection preliminary examination in the same a the privilege.14 case is waiver of privilege

The confidential communication acts to hold inviolate the privacy the marital relation- ship. might When facts which privi- otherwise be leged inspect, purpose are disclosed for all to is privilege destroyed. Just as one cannot bell, unring a a secret once disclosed in court open again wholly private is never a matter.15 (CA States, 6, 1944), Fraser v United 145 F2d 145 cert den 324 (1944). US 849 13At least one other court has indicated that the rule does extend proceedings: to other However, waived, privilege confidentiality once the is sought protected merely legal to be a fiction. We therefore that, waived, otherwise, hold once whether at a former trial patient Mincey, cannot reassert his or her v [State (1984). 425, 439; Emphasis 141 Ariz 687 1180 P2d added.] Postley, 417; See also In re 125 Misc 2d NYS2d (1984) ("Once waived, time,’ 'all is waived for Lowe, statutory secrecy having broken”); People seal of been (1978) 33; (pretrial prelimi Misc 2d nary hearing 408 NYS2d 873 at a disclosure privilege regarding inquiry); waived the General Ameri (1943) (waiver Ettinger, 876; can Life Ins Co v of the 266 AD NYS2d separate operates in a action as a waiver (1908). Bloom, subsequent proceeding); People v 193 NY 85 NE 824 before, although This Court has this once discussed issue Knights Pythias, of a In basis decision. Briesenmeister v 195 Hamacher v Opinion Dissenting Boyle,

hi Finally, the testi- it error to admit even if was dictum, (1890), stated, 525, 534-535; in this Court 45 NW 977 may prior proceeding in a privilege be reasserted waived in a that a upon v subsequent proceeding. relied Grattan Metro Briesenmeister (1883), already Co, 274; which had politan 92 44 AR 372 Life Ins NY Street, Co, by McKinney PP & F R 104 NY v Grand been overruled (1887). overly generous 352; perhaps of the Briesen 10 544 It was NE in that as "overruled” to characterize Grattan meister Court merely theory recapture alternative admissible. privilege in Grattan was mentioned of ground was the evidence for the court’s conclusion explained: initially court As the Grattan reasons. What the inadmissible for two evidence was [T]he trial, being living he a former testified to on for examination witness present proved memory. trial, only be on the second could refreshing contradicting purpose his him or of of for justify proof. emergency existed to of that kind No [Id., p 287.] authority acknowledged, McKinney was no court later As the ground privilege by which provided the evidence for the alternative in Grattan was excluded. Grattan, Furthermore, Briesenmeister, involved like upon a life treating physician in an action of the deceased by fraudu- policy claimed forfeiture in which the insurer insurance lent statement in Briesenmeister privileged court erred the alleged part insured. The error of the of health on alleged to be certain evidence was the exclusion of agreed trial only that the The Court after its admission. testimony, given portions striking of the at least However, late, trial. objection for a new was and reversed might suggested be reasserted that the Briesenmeister trial. at the new view, Given the control in this case. my does not In Briesenmeister reasoning changes the continued existence behind in this substantial of hundred Court’s nearly spousal one statutory privileges bar such as the decided, the fact that years was since Briesenmeister recapture of the of a in that case discussion conclusion, authority I find its clearly and the lack dictum has unpersuasive. that Briesenmeister To the extent Briesenmeister application value, has no any precedential narrow indeed and these facts. separate opinion, cited Justice Levin 114 Iowa The two cases (1901), 275; Co, Drug Burgess Maryland 86 NW v Sims (1915), 434; Maloney, do Casualty 119 Ark 178 SW vCo necessarily preclude proposition that a waiver does stand for reassertion However, proceeding. I subsequent privilege at a of a weight great light dispositiveness fact that the question their See, e.g., opposite authority supports conclusion. more recent Ins, F2d Charity American Life Fund v Fireman’s Cerro Gordo (CA Super 8, 1987); Bishop, 435 A2d NJ State Mincey, supra. (1982);State v 432 Mich Dissenting Opinion Boyle, J. mony, the defendant’s wife would be considered due to defendant’s asser- unavailable as a witness spousal privilege.16 such, tion of the As her testi- preliminary mony examination, to which at the object, be received un- defendant failed to should 804(b)(1), provides exception to MRE which der given hearsay "[testimony the rule for as a wit- hearing or a different ness at another of the same proceeding . . . .” recognized admissibility has

This Court though testimony prior testimony even at precluded by trial was spousal defendant’s assertion of People privilege. example, Love, For v supra, p 708, if Justice indicated Cavanagh spouse "voluntarily testified at the witness testimony [preliminary] examination, her recorded trial wofild have been admissible at as substantive 804(b)(1),” though pursuant to MRE even evidence precluded testifying trial she had been from spousal privilege. (Opinion of because of the concurring.) J., J., See also with Cavanagh, Levin, People App Whalen, 738; 342 (1983) ("Consequently, ... if the NW2d preliminary . . . testified at the examination while prosecution majority waived reaches the conclusion that argu argument prosecution’s the waiver as well as the alternative prior testimony prelimi ment that defendant’s wife’s recorded at the 804(b)(1) nary examination would have been admissible under MRE testifying precluded she from at trial defendant’s invoca had tion of the been spousal privilege, since she would then have be deemed 804(a)(1) "unavailability unavailable as a witness. MRE defines exempted by to include situations in which the declarant "is witness” ruling ing ground privilege testifying from of the court on the concern subject matter of statement . . . .” [the] prosecution precluded from advanc- I would conclude that the is not ing argument by argument prior to either its failure to assert that filing Appeals its with this Court. Prior to the decision of the Court brief remand, prosecution, appellee, required to was not prior present any particular arguments its favor. required support of before decisions Only appellant this Court was it when it became the fact, has, arguments done. to raise such which it v Hamacher Dissenting Opinion by Boyle,

married the defendant and the marital properly preliminary asserted, exami- nation is admissible at trial when the defendant”). marital is asserted

CONCLUSION Appeals reversing The Court of erred in exceptions conviction because § 2162, listed in specifically exception concerning more crimes apply both, children either or communications

Riley, C.J., J., Griffin, concurred with Boyle,

Case Details

Case Name: People v. Hamacher

Court Name: Michigan Supreme Court

Date Published: Mar 30, 1989

Citation: 438 N.W.2d 43

Docket Number: 81202, (Calendar No. 2)

Court Abbreviation: Mich.