Cite as: 524 U. S. 399 (1998)
OTMConnor, J., dissenting
"loss of crucial information" will often result, see 24 C. Wright & K. Graham, Federal Practice and Procedure § 5498, p. 484 (1986).
As the Court of Appeals observed, the costs of recognizing an absolute posthumous privilege can be inordinately high. See In re Sealed Case, 124 F. 3d 230, 233-234 (CADC 1997). Extreme injustice may occur, for example, where a criminal defendant seeks disclosure of a deceased client's confession to the offense. See State v. Macumber, 112 Ariz. 569, 571, 544 P. 2d 1084, 1086 (1976); cf. In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 486, 562 N. E. 2d 69, 72 (1990) (Nolan, J., dissenting). In my view, the paramount value that our criminal justice system places on protecting an innocent defendant should outweigh a deceased client's interest in preserving confidences. See, e. g., Schlup v. Delo, 513 U. S. 298, 324-325 (1995); In re Winship, 397 U. S. 358, 371 (1970) (Harlan, J., concurring). Indeed, even petitioners acknowledge that an exception may be appropriate where the constitutional rights of a criminal defendant are at stake. An exception may likewise be warranted in the face of a compelling law enforcement need for the information. "[O]ur historic commitment to the rule of law . . . is nowhere more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer." Nixon, supra, at 709 (internal quotation marks omitted); see also Herrera v. Collins, 506 U. S. 390, 398 (1993). Given that the complete exclusion of relevant evidence from a criminal trial or investigation may distort the record, mislead the factfinder, and undermine the central truth-seeking function of the courts, I do not believe that the attorney-client privilege should act as an absolute bar to the disclosure of a deceased client's communications. When the privilege is asserted in the criminal context, and a showing is made that the communications at issue contain necessary factual information not otherwise available, courts
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