Opinion
Nos. 109931, 109944.
April 7, 1999.
July 30, 1999.
On order of the Court, leave to appeal having been granted and the case having been argued and submitted for decision, we REVERSE, in part, the judgment of the Court of Appeals. Plaintiff was not entitled to a directed verdict because reasonable minds could differ on the question whether the conversation at issue was "private." The trial court should have instructed the jury that the question whether plaintiff's conversation was private depends on whether she intended and reasonably expected it to be private at the time and under the circumstances involved. Also, the court improperly instructed the jury that "where one reasonably expects the substance of a private conversation to be communicated to others and not remain confidential, it is not a private conversation within the meaning of the eavesdropping statute." This instruction was erroneous because it focused on the "substance" of plaintiff's conversation. The proper question is whether plaintiff intended and reasonably expected that the conversation was private, not whether the subject matter was intended to be private. Finally, the trial court improperly instructed the jury that "a conversation knowingly broadcast by a participant into the public airwaves is not private." Again, this is not an accurate statement of the law — a participant may not unilaterally nullify other participants' expectations of privacy by secretly broadcasting the conversation. In light of the erroneous jury instructions, we REMAND the case to the Washtenaw Circuit Court for a new trial as to liability. We do not reach the question whether the Court of Appeals properly construed other portions of the eavesdropping statute. MCL 750.539 et seq.; MSA 28.807 et seq. Reported below: 222 Mich. App. 185 (1997).
Corrigan, J., not participating.