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Undue Influence

Undue Influence. Tristan D. Svare Deputy District Attorney, San Bernardino County, CA Family Violence Unit – Elder Abuse Prosecution (909) 387-6533 and email tsvare@sbcda.org (With Special Thanks to Candace Heisler, Esq.). Undue Influence – Financial Crimes. Theft Larceny Robbery

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Undue Influence

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  1. Undue Influence Tristan D. Svare Deputy District Attorney, San Bernardino County, CA Family Violence Unit – Elder Abuse Prosecution (909) 387-6533 and email tsvare@sbcda.org (With Special Thanks to Candace Heisler, Esq.)

  2. Undue Influence – Financial Crimes • Theft • Larceny • Robbery • False Pretenses • Trick or Device • Embezzlement • … Undue Influence…?

  3. Undue Influence – Other Crimes • Newer Crimes • Identity Theft • Credit Card Theft • Perjury • Forgery • What Else?

  4. Undue Influence - Anticipate Defenses • Consent? • Knowledge? Permission? • Investment? • Mistake? • Salary / Payment? Quid Pro Quo? • Gift? Inheritance? • Debt? • True Ownership? POA or Legal Authority?

  5. Undue Influence - Consent • To Be True Consent, Must • Act Freely and Voluntarily • Not Under Effects of Force, Fear, Duress, Promises. Lies • Knowledge of True Nature of Transaction • Legal Capacity to Make Intelligent Choice to Do, or Not Do, Action • = Capacity and Med/Psych Issues at Work

  6. Undue Influence - Consent • Consent is NOT Mere Passive Acquiescence • Requires Free Will and Positive Cooperation • Classic Offenses, and New Offenses, Recognize and Work On These Principles • Now, UNDUE INFLUENCE Enters…

  7. 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)

  8. 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)

  9. Undue Influence – Where It Comes From • Same Tactics are seen in cults, swindles, hostage taking scenarios, and prisoner of war camps • Also seen in “Mind Games” • Suspects are “Opportunists” and “Predators”

  10. Undue Influence - Components • Isolation • Siege Mentality • Dependency • Sense of Powerlessness • Sense of Fear and Vulnerability • Kept Unaware • = Ripe for Elders, and Persons with Disabilities

  11. Undue Influence - Isolation • Suspect • Controls All Means of Communication To and From Target/Victim • Takes Advantage of Victim’s Personal Situation • Loss • Grief • Financial Naivety • Changes in Health

  12. Undue Influence – Siege Mentality • Suspect Uses Manipulation to • Creates Pseudo World, Supported by Surrounding Events and Conditions Suspect Creates or Puts In Place • Intentional Alienation of Target/Victim’s Family, Friends, Neighbors, Acquaintances, to Make Target/Victim Feel Threatened or Menaced or Abandoned • And, Vice Versa

  13. Undue Influence - Dependency • By Actions of Suspect, and Environment, Target/Victim Becomes Dependent on Suspect for • Care, Shelter, Food • Medical Needs • Daily Activities • News and Information • Access to Larger World • Friends, Safety, and Even Life

  14. Undue Influence - Powerlessness • The Result of Manipulated isolation, Fostered Dependency and the Siege Mentality Create A Sense of Powerlessness in the Target/Victim • Target/Victim is Powerless Without Suspect • Unable to Function on Own Without Suspect

  15. 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 Manipulation • Target/Victim Resists Seeking, or Accepting, Outside Help or Assistance

  16. Undue Influence – Staying Unaware • Suspect Keeps Target/Victim In The Dark About Larger World and Reality and Opportunities For Outside Assistance, or Escape • Lies, Exaggerations, Deceptions, Manipulations, Playing On Fears, Creating Dangers and Refuge

  17. Undue Influence and Consent • Undue Influence is Focused on Overcoming Free Will • True Consent = Knowing, Free, Voluntary Choices, NOT Threats, Force, Duress, False Promises, Lies and Half-Truths • Undue Influence is where Will of Suspect Overrides Will of Target/Victim to give “apparent consent”

  18. Undue Influence - Investigations • Financial Records • Medical / Psych Records • Oral / Family History • Lots of Leg Work!

  19. Undue Influence - Investigations • Victim Risk Factors • ALL of Life Circumstances • Dependent Relationship – Suspect to Target • Social Conditions • Techniques to Isolate Target/Victim from Reality to Gain Power and Control • Loss or Harm to Target/Victim • (Dr. Susan Bernatz)

  20. Undue Influence - IDEAL • I Isolation • D Dependence on Suspect • E Emotional Exploitation, or Exploitation of Vulnerability • A Acquiescence by Target/Victim • L Loss, Financial or Other • (Dr. Bennett Blum)

  21. Undue Influence - Investigations • Questions to Ask • Has Victim Suffered A Loss? • Ill? • Depressed? • Isolated? • What Is the Suspect / Victim and Outside World Relationship?

  22. 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)?

  23. 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?

  24. Undue Influence - Investigations • What Was Victim Like BEFORE Suspect Entered The Scene? • Monetary Habits? • Patterns? • Generosity? Frugality? • Record Keeping? • Confidants and Reliable Assistants?

  25. 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?

  26. Undue Influence - Investigations • The X-Curve • Timelines • (Cesar “Chayo” Reyes, Detective – RETIRED – LAPD)

  27. Undue Influence - Defenses • Consent? • Knowledge? Permission? • Investment? • Mistake? • Salary or Payment? Quid Pro Quo? • Gift or Early Inheritance? • Debt? • True Ownership? POA or Legal Authority?

  28. Undue Influence - Prosecution • Selling Your Case to The DA • Summary • Records • Transcripts • Charts • Schedule A Meeting!

  29. Undue Influence - Court • Experts – National, Local, or Yourself! • Explaining Means and Manner of Not Having Valid Consent, only Apparent Consent

  30. Undue Influence – Looking Ahead • National Resources • www.ndaa.org • www.cdaa.org • www.centeronelderabuse.org • Teamwork and Resources! • Coordinated Community Response, MDTs FASTs, and Forensic Centers and Family Justice Centers

  31. Undue InfluenceThank You! Tristan D. Svare (909) 387-6533 Email tsvare@sbcda.org

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