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Case 1:20-cr-00330-PAE Document672 Filed 06/24/22 Page 64 of 68 Committee, I oversaw the drafting of the current version of the Prosecution Function Standards and participated in drafting and discussing prosecutors’ candor obligations in particular. In general, as “ministers of justice,” prosecutors have more demanding candor obligations than other lawyers. Prosecution Function Standards, Standard 3-1.4(a) states: “In light of the prosecutor’s public responsibilities, broad authority and discretion, the prosecutor has a heightened duty of candor to the courts .. ..” Prosecutors’ candor obligations are not fully incorporated in the professional conduct rules or in courts’ sanctions decisions. To a significant extent, courts expect candor from prosecutors regardless of whether the expectations are fully incorporated in enforceable law or whether a lack of candor is sanctionable. In rendering this opinion, I address what courts should expect of prosecutors as “ministers of justice” — expectations that are not fully codified in professional conduct rules and sanctions decisions. If the Government were to call Ms. Giuffre as its witness in connection with the sentencing, then it would have the ordinary obligation first to satisfy itself of the truthfulness of her testimony and then to disclose impeachment material. See, e.g., NY Rules of Professional Conduct, Rule 3.8(b); ABA Prosecution Function Standards, Standard 3-1 -4(b) (“The prosecutor should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably believe to be true . . ..”) id., Standard 3-5.4(c) (“a prosecutor should make timely disclosure to the defense of information [that tends to impeach the government’s witnesses] that is known to the prosecutor, regardless of whether the prosecutor believes it is likely to change the result of the proceeding.”). I assume that the Government does not intend to make Ms. Giuffre its witness, and that insofar as Ms. Giuffre makes a presentation to the court, she will do so pursuant to her statutory right as a putative victim. Even if so, in my judgment, equivalent candor obligations arise if the Government were to rely on Ms. Giuffre’s statement in its submissions to the court, thereby essentially making her its witness. Before asking the court to credit Ms. Giuffre’s information, the Government should consider available evidence bearing on to her credibility, including deposition testimony that, it has been told, raises serious questions concerning the credibility of her relevant testimony. The prosecutors should not rely on Ms. Giuffre’s information unless, in the language of Standard 3-1.4(b), they “reasonably believe [it] to be true.” Their belief in Ms. Giuffre’s reliability would not be reasonable unless they consider readily available information that, they have been told, discredits her and, given the totality of the circumstances, reasonably find her account truthful. Finally, even assuming the Government does not intend to advance or rely on Ms. Giuffre’s statement or testimony, its duty of candor to the court may be implicated, because prosecutors bear some responsibility to protect the sentencing court from relying on false information. As I have previously written: “Since the judge has no independent investigative authority, the sentencing judge must rely in large part on the prosecution for the relevant facts about the offense. If any lawyer must make full and frank disclosure of factual matters relevant to the sentencing court’s decision-making, it is surely the prosecutor.” Green, Candor in Criminal Advocacy, supra, at 446; cf. United States v. E.V., 500 F.3d 747, 754 n.12 (8 Cir. 2007) (referring to “prosecutors” obligation to apprise the court of facts relevant to sentencing”). Consequently, the Office cannot consciously disregard Ms. Giuffre’s deposition testimony bearing on the credibility of her submission to the court; further, if the Office concludes that Ms. Giuffre’s submission is unreliable, SDNY_GM_02775900 SUBJECT TO PROTECTIVE ORDER PARAGRAPHS 7, 8, 9, 10, 15, and 17 DOJ-OGR-00010655