Cheek Good Faith - Must the Defendant Testify to Assert the Good Faith "Defense" (10/13/10)

One of the problems with asserting the so-called Cheek good faith “defense” at trial is that, as one court recently held, the defendant will have to testify to put the good faith defense in play. United States v. Kokenis, ___ F.Supp. 2d ___ (ND IL 2010). Actually, for clarity, the good faith issue is not a defense at all, but the evidence at trial does have to put the issue in play in order to obtain a special Cheek inspired instruction placing the burden of proof on the Government to disprove good faith (see here). While it is hard to imagine a credible assertion of the "defense" where the defendant did not testify, I am not sure that asserting the defense would require the defendant to testify in every case. If there is other evidence from which a reasonable jury could conclude that the defendant acted in good faith, the issue should be in play, the defendant should get the Cheek good faith instruction, and the Government must then prove lack of good faith. I am just not sure that there is no case in which the defendant would have to testify in order the put the issue in play.

The other parts of the short opinion suggest that the evidence at trial in fact negated good faith, anyway so that the court's articulation of a requirement that the defendant testify to put the issue in play appears academic. The following from a couple of the footnotes should give some flavor:

n1 What defense counsel's current motion avoids (quite understandably, in light of its damning nature) is all of the evidence of fraudulent and forged documents that overwhelmingly establish Kokenis' guilt on a number of material items of tax fraud for the years at issue. This Court knows of no authority that holds a taxpayer can hold a good faith belief that he or she is permitted to create bogus documents in an effort to transform what are unquestionably items of personal expenditure into faked business expenses that consequently understate reportable income.

n4 [Footnote by this Court] Once again, even that statement is conspicuously silent as to the undisputed evidence that incontrovertibly established Kokenis' fraudulent intent as to a substantial number of the items that he excluded from reportable income and that could not have been touched by some claimed good faith defense.

Any thoughts from the readers of the Blog?

Addendum 10/13/10 2:15 pm

See further discussion at the Gillette-Torvik Blog here.