Establishing a "Cheek" Defense Through Expert Testimony

September 16, 2021  |  New York Law Journal

To obtain a conviction on criminal tax charges, the government must prove the defendant acted “willfully.” In Cheek v. United States, the Supreme Court held that to satisfy this burden the government must “prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.” In this article, “Establishing a Cheek Defense Through Expert Testimony,” I analyze recent Circuit Court decisions rejecting claims that defendants were improperly deprived of their ability to present a Cheek defense. While there may be circumstances in which this can be done through expert testimony, the case law makes clear that defendants face an uphill battle to establish a lack of willfulness through experts.

Establishing a "Cheek" Defense Through Expert Testimony (pdf | 210.94 KB)