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