Undue Influence

Tristan D. SvareDeputy 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• False Pretenses• Trick or Device• Embezzlement• … Undue Influence…?

Undue Influence – Other Crimes

• Newer Crimes• Identity Theft• Credit Card Theft• Perjury• Forgery• What 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, 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

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…

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 camps

• Also seen in “Mind Games”• Suspects are “Opportunists” and “Predators”

Undue Influence - Components

• Isolation• Siege Mentality• Dependency• Sense of Powerlessness• Sense of Fear and Vulnerability• Kept Unaware• = Ripe for Elders, and Persons with Disabilities

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

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

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

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

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

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

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”

Undue Influence - Investigations

• Financial Records• Medical / Psych Records• Oral / Family History• Lots of Leg Work!

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)

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)

Undue Influence - Investigations

• Questions to Ask• Has 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-Curve

• Timelines

• (Cesar “Chayo” Reyes, Detective – RETIRED – LAPD)

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?

Undue Influence - Prosecution

• Selling Your Case to The DA• Summary• Records• Transcripts• Charts• Schedule 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 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

Undue Influence

Thank You!

Tristan D. Svare(909) 387-6533

Email tsvare@sbcda.org