404
Opinion of the Court
and the Court of Appeals below have held the privilege may be subject to posthumous exceptions in certain circumstances. In Cohen, a civil case, the court recognized that the privilege generally survives death, but concluded that it could make an exception where the interest of justice was compelling and the interest of the client in preserving the confidence was insignificant. Id., at 462-464, 357 A. 2d, at 692-693.
But other than these two decisions, cases addressing the existence of the privilege after death—most involving the testamentary exception—uniformly presume the privilege survives, even if they do not so hold. See, e. g., Mayberry v. Indiana, 670 N. E. 2d 1262 (Ind. 1996); Morris v. Cain, 39 La. Ann. 712, 1 So. 797 (1887); People v. Modzelewski, 611 N. Y. S. 2d 22, 203 A. 2d 594 (App. Div. 1994). Several State Supreme Court decisions expressly hold that the attorney-client privilege extends beyond the death of the client, even in the criminal context. See In re John Doe Grand Jury Investigation, 408 Mass. 480, 481-483, 562 N. E. 2d 69, 70 (1990); State v. Doster, 276 S. C. 647, 650-651, 284 S. E. 2d 218, 219 (1981); State v. Macumber, 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976). In John Doe Grand Jury Investigation, for example, the Massachusetts Supreme Judicial Court concluded that survival of the privilege was "the clear implication" of its early pronouncements that communications subject to the privilege could not be disclosed at any time. 408 Mass., at 483, 562 N. E. 2d, at 70. The court further noted that survival of the privilege was "necessarily implied" by cases allowing waiver of the privilege in testamentary disputes. Ibid.
Such testamentary exception cases consistently presume the privilege survives. See, e. g., United States v. Osborn, 561 F. 2d 1334, 1340 (CA9 1977); DeLoach v. Myers, 215 Ga. 255, 259-260, 109 S. E. 2d 777, 780-781 (1959); Doyle v. Reeves, 112 Conn. 521, 152 A. 882 (1931); Russell v. Jackson, 9 Hare 387, 68 Eng. Rep. 558 (V. C. 1851). They view testa-
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