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
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