Undue Influence
Tristan D. SvareDeputy District Attorney, San Bernardino County, CAFamily Violence Unit – Elder Abuse Prosecution(909) 387-6533 and [email protected](With Special Thanks to Candace Heisler, Esq.)
Undue Influence – Financial Crimes
TheftLarcenyRobberyFalse PretensesTrick or DeviceEmbezzlement… Undue Influence…?
Undue Influence – Other Crimes
Newer CrimesIdentity TheftCredit Card TheftPerjuryForgeryWhat Else?
Undue Influence - Anticipate Defenses
Consent?Knowledge? Permission?Investment?Mistake?Salary / Payment? Quid Pro Quo?Gift? Inheritance?Debt?True Ownership? POA or Legal Authority?
Undue Influence - Consent
To Be True Consent, MustAct Freely and VoluntarilyNot Under Effects of Force, Fear, Duress, Promises. LiesKnowledge of True Nature of TransactionLegal Capacity to Make Intelligent Choice to Do, or Not Do, Action= Capacity and Med/Psych Issues at Work
Undue Influence - Consent
Consent is NOT Mere PassiveAcquiescenceRequires Free Will and Positive CooperationClassic Offenses, and New Offenses, Recognize and Work On These PrinciplesNow, UNDUE INFLUENCE Enters…
Undue Influence – What It Is
Misuse of role and power to exploit the trust, dependency, and fear of another to deceptively gain control over person’s decision making (Margaret Singer)
Undue Influence – What It Is
Manipulation resulting from a relationship between the victim and suspect. Undue Influence assesses the impact of the suspect’s behavior on the elder (Bennett Blum)
Undue Influence – Where It Comes From
Same Tactics are seen in cults, swindles, hostage taking scenarios, and prisoner of war campsAlso seen in “Mind Games”Suspects are “Opportunists” and “Predators”
Undue Influence - Components
IsolationSiege MentalityDependencySense of PowerlessnessSense of Fear and VulnerabilityKept Unaware= Ripe for Elders, and Persons with Disabilities
Undue Influence - Isolation
SuspectControls All Means of Communication To and From Target/VictimTakes Advantage of Victim’s Personal SituationLossGriefFinancial NaivetyChanges in Health
Undue Influence – Siege Mentality
Suspect Uses Manipulation toCreates Pseudo World, Supported by Surrounding Events and Conditions Suspect Creates or Puts In PlaceIntentional Alienation of Target/Victim’s Family, Friends, Neighbors, Acquaintances, to Make Target/Victim Feel Threatened or Menaced or AbandonedAnd, Vice Versa
Undue Influence - Dependency
By Actions of Suspect, and Environment, Target/Victim Becomes Dependent on Suspect forCare, Shelter, FoodMedical NeedsDaily ActivitiesNews and InformationAccess to Larger WorldFriends, Safety, and Even Life
Undue Influence - Powerlessness
The Result of Manipulated isolation, Fostered Dependency and the Siege Mentality Create A Sense of Powerlessness in the Target/VictimTarget/Victim is Powerless Without SuspectUnable to Function on Own Without Suspect
Undue Influence – Fear & Vulnerability
In Becoming Utterly Dependent On the Suspect for all of Life’s Needs, the Target/Victim Believes They are Vulnerable and Dependent, and So Will Go Along With Suspect, and Not Contradict Suspect and ManipulationTarget/Victim Resists Seeking, or Accepting, Outside Help or Assistance
Undue Influence – Staying Unaware
Suspect Keeps Target/Victim In The Dark About Larger World and Reality and Opportunities For Outside Assistance, or EscapeLies, Exaggerations, Deceptions, Manipulations, Playing On Fears, Creating Dangers and Refuge
Undue Influence and Consent
Undue Influence is Focused on Overcoming Free WillTrue Consent = Knowing, Free, Voluntary Choices, NOT Threats, Force, Duress, False Promises, Lies and Half-TruthsUndue Influence is where Will of Suspect Overrides Will of Target/Victim to give “apparent consent”
Undue Influence - Investigations
Financial RecordsMedical / Psych RecordsOral / Family HistoryLots of Leg Work!
Undue Influence - Investigations
Victim Risk FactorsALL of Life CircumstancesDependent Relationship – Suspect to TargetSocial ConditionsTechniques to Isolate Target/Victim from Reality to Gain Power and ControlLoss or Harm to Target/Victim(Dr. Susan Bernatz)
Undue Influence - IDEAL
I IsolationD Dependence on SuspectE Emotional Exploitation, or Exploitation of VulnerabilityA Acquiescence by Target/VictimL Loss, Financial or Other(Dr. Bennett Blum)
Undue Influence - Investigations
Questions to AskHas Victim Suffered A Loss?Ill?Depressed?Isolated?What Is the Suspect / Victim and Outside World Relationship?
Undue Influence - Investigations
The Event(s) or Transaction(s) or Crime(s)Did Victim Have Time to Think, Consider?Was Victim Rushed?Were Promises, or Threats, Made?What Is Suspect’s Role in Life of Victim, in Relation to Event(s)?
Undue Influence - Investigations
Could or Did Victim Consult Any Third Party? A TRUE Third Party?Does Victim Even Understand Transaction?Was Transaction Fully Explained?What Was Happening Before and During Explanations?What Are Costs and Benefits to Victim and Suspect?
Undue Influence - Investigations
What Was Victim Like BEFORE Suspect Entered The Scene?Monetary Habits?Patterns?Generosity? Frugality?Record Keeping?Confidants and Reliable Assistants?
Undue Influence - Investigations
Will Victim Testify?Can Victim Testify?Do You Have ANOTHER Form of Theft, Aside or In Addition To, Undue Influence?Capacity?Fear? Force? Embezzlement? False Pretenses?
Undue Influence - Investigations
The X-CurveTimelines(Cesar “Chayo” Reyes, Detective – RETIRED – LAPD)
Undue Influence - Defenses
Consent?Knowledge? Permission?Investment?Mistake?Salary or Payment? Quid Pro Quo?Giftor Early Inheritance?Debt?True Ownership? POA or Legal Authority?
Undue Influence - Prosecution
Selling Your Case to The DASummaryRecordsTranscriptsChartsSchedule A Meeting!
Undue Influence - Court
Experts – National, Local, or Yourself!Explaining Means and Manner of Not Having Valid Consent, only Apparent Consent
Undue Influence – Looking Ahead
National Resourceswww.ndaa.orgwww.cdaa.orgwww.centeronelderabuse.orgTeamwork and Resources!Coordinated Community Response, MDTs FASTs, and Forensic Centers and Family Justice Centers
Undue InfluenceThank You!
Tristan D. Svare(909) 387-6533Email [email protected]
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