Building A Financial
Abuse Case for the
Criminal Justice
System
Candace J. Heisler
cjheisler@AOL.com
© Candace J. Heisler, 2005
Changing Role of APS
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Increased investigative responsibilities
See more criminal conduct
Often the first responder
May well be more expert in subject than
law enforcement
 Increasingly are building cases for the
criminal justice system
Agenda
 Framework for Investigations
 Elements of Crimes
 Defenses and Meeting Them
 Role of the Victim
 Collection of Evidence
What is a Criminal
Investigation?
 The orderly collection,
examination, searching and
gathering of factual information
that answers questions or solves
problems
 Non-judgmental process
FRAMEWORK FOR INVESTIGATIONS
Witnesses
Physical
Evidence
Confessions
Investigative Standards:
The “Mindset”
 Cases built on
facts
 Bad people do not
make good facts
INVESTIGATIVE GOALS
WHAT
HOW
Building the
Investigation
 What happened?
 Can you explain from beginning to end what
happened and describe the supporting evidence to
someone who knows nothing about the situation?
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Who did it?
Where did it happen?
How did it happen?
When did it happen?
And finally, and if it can be determined,
 Why did it happen?
Burdens Of Proof
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Preponderance of Evidence
Clear and Convincing
Beyond a Reasonable Doubt
Must work to the criminal burden if
want to secure a conviction
BURDEN OF PROOF
Beyond a reasonable doubt
Probable cause
Reasonable suspicion
Preponderance
• The greater weight of the evidence
• Sufficient to incline a fair and impartial
mind to one side of the issue rather than
the other
• Slightly more than 50-50
• Civil burden of proof
• Substantiate an allegation
Beyond a Reasonable
Doubt
 Not a mere possible doubt; because everything
relating to human affairs is open to some
possible or imaginary doubt.
 That state of the case which after the entire
comparison and consideration of all the
evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an
abiding conviction of the truth of the charge.”
 Penal Code §1096
Crawford v. Washington
 United States Supreme Court decision
 Interprets the US Constitution
 March 8, 2004
 Greatly restricts the use of hearsay
statements
 Invalidates most statements under EC 1380
The Facts
 Crawford accompanied by his wife, went to the
home of a man Crawford believed had tried to
rape his wife and stabbed him.
 At trial Crawford claimed he acted in self
defense.
 He invoked a Washington legal privilege to keep
his wife from testifying against him.
 The court declared her unavailable and allowed
the prosecution to offer her statement to police
that contradicted the defendant’s account.
 Defendant objected stating the receipt of her
statement violated his right of confrontation
Crawford v. Washington
 Witness statements which are testimonial
in nature, including out of court
statements and prior testimony, are
inadmissible unless
 Declarant is unavailable
 Defendant had a prior opportunity to cross
examine the declarant
What Is Legally
Unavailable?
 Dead
 So ill that the witness cannot be brought
to court
 Delusional
 Legally incompetent
 With exercise of due diligence, cannot
locate the witness
Crawford v. Washington
 What is testimonial?
 Statements received for their truth
 If not offered for the truth, not testimonial
 Incompetence or insanity
 Improbability of legal consent
 Lack of belief suspect legal consent
Is it Testimonial?
 Formality of the statement
 Affidavit vs. off-hand remark
 Why was statement made?
 Get help or build a case
 Did declarant expect that the statement would be
available for use at a later trial?
 Call to 911 was to summon help not to provide statement for
trial
 Was the statement made to governmental officials
acting to advance a criminal investigation or
prosecution?
What is Testimonial?
 Structured or formal
interrogations and interviews by
law enforcement
 Interviews by other governmental
officials if for litigation
 APS
 Prosecutors
What Is Testimonial?
 Prior testimony at a hearing, before a
grand jury, or prior trial
 Statements in depositions or affidavits
 Statements made during guilty plea
proceedings
What Is Non Testimonial
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Spontaneous Statement
Business records
Statements in furtherance of a conspiracy
Dying declarations
A chance remark overheard by an officer
Statements to medical professionals for
treatment
 Statements to non governmental third parties
 Friends, family, acquaintances
Crawford v. Washington
 Inapplicable if the declarant is
unavailable because of defendant’s
misconduct
 Intimidation?
 Has suspect called you since the arrest?
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Threats or promises?
Hide the victim?
Sham marriage?
Bench warrants after case filed
Implications of Crawford
 Still need to fully interview the victim
 Non-testimonial uses
 Abuser’s conduct, “forfeiture”
 Contact the victim to document any contact by
abuser, any violations of no-contact orders,
threats
 Work closely with criminal justice system to
 Get cases charged promptly
 Resist continuances when possible
 Conditional examinations
Implications of Crawford
 Must make victim available to testify and
be cross examined
 More victims will be subpoenaed and
required to testify
 Victim participation will be more important
 Corroborate!
 Who else knows
 Victim and suspect
Implications of Crawford
 Identify other sources of information
 Health care professionals
 Paramedics and EMTs
 Family and friends
 Who did victim tell first
 Importance of asking about and
documenting the victim's demeanor and
reason for making contact
 Not for police action but for safety, health needs,
seek help
Crimes Overview
 Multiple crimes can occur within a single
event; each can be charged
 Can charge general crimes with elder
abuse
 Can charge prior acts within statute of
limitations
 Importance of investigating more than
just what is reported
Penal Code 368(a)
Legislative Findings
 Crimes against elderly and dependent adults
are deserving of special consideration
 Protections because they may be confused,
on medications, mentally or physically
impaired or incompetent, and
 Therefore less able to protect themselves, to
understand and report criminal conduct, or
testify on their own behalf
Definitions
“Elder” is a person 65 or older
“Caretaker” is any person who has
the care, custody, or control of, or who
stands in a position of trust with, an
elder or dependent adult
Definitions
 “Dependent Adult”
 a person 18 to 64
 who has a physical or mental limitation which
restricts his or her ability to carry out normal
activities or protect his or her rights
 includes persons with physical or
developmental disabilities, and persons who
abilities have diminished because of age
Penal Code 368(b)(1)
 Any person who under circumstances or
conditions likely to produce great bodily harm
or death
 willfully causes or permits any elder or dependent
adult, to suffer
 Knowing or reasonably should know that he or
she is an elder or dependent adult,
 or inflicts thereon unjustifiable physical pain or
mental suffering
PC 368(b) and (c)
 PC 368(b)(1) is a felony
 PC 368(c)
 Same as PC 368(b)(1), except under
circumstances other than those likely to
result in great bodily harm or death
 Is a misdemeanor offense
PC 368(d), (e)
 Any person (non-caretaker) who violates any
provision of the law relating to theft,
embezzlement, forgery, fraud, or identity theft
property of an elder or dependent adult
 F/M if taking of moneys, labor, goods,
services, or real or personal property over
$400.00; Misdemeanor if under $400.00.
 368(d) requires that the suspect know or
reasonably should know the victim is an elder or
dependent adult
 368(e) applies to caretakers; there is no
knowledge element
PC 368(f)
 False imprisonment of an elder or
dependent adult
 Using violence, menace, fraud, or deceit
 Mandatory felony
Other Financial Crimes
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Theft (grand and petit) PC 484a, 487
Burglary PC 459
Forgery PC 470
Credit Card Misuse PC 484d-484j
Identity Theft PC 529-530
Perjury/Making a False Statement PC 118
Do you have a current Penal Code?
CALJIC (Jury Instructions)
Meeting Defenses
 Importance of investigating possible
defenses
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Prove or disprove them
Part of role as neutral investigator
Avoid “surprises”
Your own integrity and professionalism
Brady v. Maryland obligations of the
prosecutor
Common Defenses
 “My inheritance a little early”
 Salary or debt
 Gift
 Consent
 Undue Influence
 Acting within the scope of legal authority
 Power of attorney
 Conservatorship
Elements of Consent
• Requires that a person act freely and
voluntarily, not under the effects of
threats, force, duress, or promises
• Must have knowledge of the true nature
of the transaction
• Must have the legal capacity to make an
intelligent choice whether or not to do
what is proposed
Elements of Consent
• Mere passivity is not consent
• Consent requires a free will and positive
cooperation in the action
• See CALJIC 1.23
Undue Influence
 Misuse of role and power to exploit the trust,
dependency, and fear of another to
deceptively gain control over that person’s
decision making (Margaret Singer)
 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
 Same tactics as used in cults, swindles,
hostage taking situations, and prisoner of
war camps
 “Mind games”
 Suspects are
 Opportunists
 Predators
Components of Undue
Influence
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Isolation
Siege mentality
Dependency
Sense of powerlessness
Sense of fear and vulnerability
Being kept unaware
Singer, 1998
Isolation
 The suspect
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Controls all means of communication to
and from the intended victim
Takes advantage of the victim’s personal
situation including losses, grief,
inexperience with financial management,
health changes
Siege Mentality
 The suspect through his or her
manipulation
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Creates a “pseudo-world” that is supported
by the surrounding events and conditions
that the manipulator puts in place
Other members of the intended victim’s
family, friends or trusted advisors are
characterized to make the victim feel as
though the outside world is threatening and
menacing
Dependency
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The intended victim becomes
dependent on the manipulator for care,
medical attention, food, daily activities,
information, access to the outside
world, access to family and friends,
safety, well-being, and ultimately for life
Sense of Powerlessness
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The results of the manipulated
isolation, fostered dependency and the
siege mentality create a sense of
powerlessness in the intended victim..
The intended victim becomes
dependent on the manipulator for
information and access to the outside
world.
Sense of Fear and
Vulnerability
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Becoming utterly dependent on the
suspect for all of the victim’s needs and
even life leaves the victim believing that
s/he is completely vulnerable and
fearful of going against the
manipulation
The victim does not seek external help
because the suspect’s manipulation
has instilled beliefs that the outside
world is menacing and threatening
Staying Unaware
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The victim is kept unaware that the
manipulator has constructed a “pseudoworld” or false reality.
The intended victim is kept unaware
that the manipulator has been playing
on the victim’s fears, through the use of
lies, exaggerations, deceptions, and
manipulations.
Undue Influence and
Consent
 Undue influence focuses on free will
 Consent requires that a person act freely and
voluntarily, not under the effects of threats,
force, duress, or promises and has full
knowledge of the transaction
 Undue influence means that the will of the
suspect overrides the will of the person who
gave “consent”
Categories of
Investigation
 Victim Risk Factors
 Life circumstances from all aspects of victim's life
 Dependent Relationship
 Nature of relationship victim has with alleged
influencer
 Social Conditions
 Influencer’s techniques used to isolate victim from
social supports and “reality” testing to achieve
power and compliance over the target
 Loss or Harm
 Dr. Susan Bernatz Model
“IDEAL”
 I Isolation
 D Dependence on the Perpetrator
 E Emotional Exploitation or Exploitation
of Vulnerability
 A Acquiescence
 L Loss
 Dr. Bennett Blum
Investigation of Undue
Influence
 Determine:
 Has the victim suffered a loss?
 Is the victim ill?
 Is the victim depressed?
 Is the victim isolated?
 What is the relationship between victim
and suspect?
Investigation of Undue
Influence
 Regarding the suspicious event
 Did victim have time to think over the
transaction?
 Was victim “rushed” to act?
 Were promises made? Threats?
 What role does suspect play in victim’s life?
Investigation of Undue
Influence
 Did victim have the opportunity to consult
with a neutral third party?
 Does victim understand the transaction?
 Was the transaction fully explained?
 What events preceded the discussion about
the transaction?
 What are the relative benefits to victim and
suspect?
Possible Evidence
 Habits of “victim” in past
 Spending
 How made significant decisions
 Gift-giving
 Who are the “natural objects of the
victim’s bounty?”
 What has been the victim's relationship with
them in the past? Recently?
Possible Evidence
 What did the suspect receive vs. what the
victim received
 What was the consideration?
 Is there a will?
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Recent changes
Who witnessed the signing of the will?
Who were the previous beneficiaries?
Has there been a recent change in the victim’s
relationship with the previous beneficiaries? Why?
Possible Evidence
 Did victim
 Do planning for preserving assets?
 Articulate goals for handling of assets in the future?
 Set up joint bank accounts, trusts, rep. payee
arrangements
 Establish a durable power of attorney
 How does this event fit into previous goals and
steps to preserve assets?
Role of the Victim
 Some cases are provable because the
victim is able to testify and provide
information
 Others are provable because the victim is
unable to testify and is legally
incompetent
 This issue should always be considered
when developing the case
 Always look or corroboration!
Role of the Victim
 Always interview if alive
 Value of videotaping
 Consider if it should be done alone, by law
enforcement, or jointly
 Demonstrate victim's competence and
establish if statement legally trustworthy
 Generally avoid leading questions
Sources of Evidence
 Public records
 Assessor’s office (some tax records)
 Secretary of state’s office (corporate
documents, notary listings)
 Court clerk’s office – court records, marriage
licenses, court orders, pleadings
 Business licenses
 Recorder’s office (property ownership, liens)
The Historical
Perspective
 Reports of prior calls
 Law enforcement
 APS and Aging Services
 Medical reports
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Current and previous visits
Health conditions, medications
Mental health observations
Don’t forget paramedics, dentists, geriatricians,
mental health providers
Prior Cases or Incidents
 Suspect’s prior employers
 Court Files
 Prior lawsuits and applications for court
orders for this and other victims
 Convictions and court sentencing orders and
conditions
 Bankruptcy filings
Sources of Evidence
 Bank Records
 Bank can provide if a potential or actual victim
 NSF checks
 A bank can refuse to pay a check or other order
for withdrawal of money
 if it believes or receives an affidavit stating that the
person drawing, endorsing or presenting the instrument
 is or was at the time of the signing mentally or
physically disabled as to raise doubt that the person is
competent to transact business
 California Commercial Code 4405(4)
Other Sources
 Financial institutions, credit agencies,
brokerages
 Victim and suspect
 Notify Franchise Tax Board
 Parallel investigation for failure to pay taxes
owed from financial gains
Importance of Working
With Law Enforcement
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Search warrants
Gain entry
Arrest
Emergency Protective Orders
 Not available if only abuse is financial
 Provide protection for you and victim
Sources of Evidence
 On Line Data Bases – many require an
account
 GOOGLE is free
 WESTLAWPRO—records across US on
business and corporate filings, UCC filings,
liens and judgments, lawsuit records, asset
locator, aircraft and watercraft records, and
stock locator records
Obtaining Consent
 Consent
 Who can give it? Is victim competent? What is
likely defense? Is case built on lack of
capacity?
 Does victim have a guardian or attorney in
fact who is not a suspect?
 Can anyone else give consent?
 Suspect subject to warrantless search as
condition of probation or parole? Who
authorized to conduct search?
Crawford v. Washington
 Critical importance of witnesses to whom
victim and suspect have spoken
 Identify non governmental witnesses to
statements
 Document spontaneous statements and
demeanor
 Calls for help and medical care
Your Investigation
 Witnesses-- Circle around the victim
 Now and before
Bank
CPA Neighbors
Doctor, Dentist
Lawyer
Vet
Children
Victim
Friends
Clergy Mail Carrier Hairdresser
Clubs
The Investigation
• Build a clear, complete chronology
• What every witness knows
• Victim's level of functioning in the past
• Statements and surrounding circumstances
such as spontaneous statements,
admissions
• Try to pinpoint exact dates
• Evidence ordered and collected
The Investigation
 What is missing? Loss?
 Inventory the estate
 You or someone trusted by victim
 See handout
 Collect all legal documents, POA,
contracts, trusts, court orders and
applications, civil suits, mental health
commitments, deeds, title documents
Investigative Steps
 Attempt to interview suspect
 Their account of events and supporting
records
 Knowledge of abilities and needs of victim
 Other sources of income
 All agreements and informal arrangements
between victim and suspect regarding
assets, salary, gifts, and after death
 Look for similar conduct with other victims
Presenting the Case to the
Criminal Justice System
 Use crimes and their elements
 Clear documentation
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Complete
Descriptive and factual
Easy to understand
Supported with photos, medical evaluations,
witnesses, formal statements, etc.
 Evidence legally obtained or obtainable
Documentation
 Paint a picture of the
situation
 Thorough
Descriptive
 Get away from “just
the facts”
Must relate relevant emotions
and dynamics
“Paint a Picture”
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Exact Quotations
Demeanor and Emotions
Complete Descriptions
The Setting
Presenting the Case to the
Criminal Justice System
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Spontaneous statements documented
Evidence understandable
Defenses addressed
Clear information on victim’s ability testify
Victim’s needs addressed
Victim safety considered
Spontaneous
Statements
 Statements made without reflection
 Stress of excitement from startling event
 Evidence Code 1240
 Person who heard statement
 Legally incompetent person’s statements
may be admissible
Describe Demeanor
Document
Physical and emotional condition
Behavior and appearance
Exact statements
Is This A Spontaneous Statement?
The suspect told me that his 5 year
old niece (Allison) and his 3 year old
nephew (Tommy) were present during
the incident. I talked with Allison and
she told me that ‘Johnny slapped
Auntie Clara on the face’. I talked to
Tommy who said “Johnny knocked
Auntie down.”
Is This A Spontaneous Statement?
Officer Smith reported interviewing Mary Ann Gray,
aged 85. “The whole time during my interview with
Mrs. Gray she appeared frightened. She was
shaking at the hands and kept looking at the front
door of her house where her son, Robert, was. I
asked her if she was afraid of Robert and she
nodded her head ‘Yes’. She said that ‘…Robert
grabbed me by the arm, pushed me into the wall,
and said sign the check or else…’”
Anticipating Defenses
 Duty to discover, investigate, and
disclose
 Exculpatory evidence
 Questions to elicit about possible
defenses
 What will (other party) tell me about this?
 What have others been told about this?
 What do other witnesses believe has
happened? Why do they believe that?
Meeting Defenses
 Loan
 Capacity of lender; amount; period of loan; terms of
repayment; how often were loans made; written or
other proof of a loan; consideration; any repayment
made
 Gift
 Capacity of donor; value of the gift; relationship
between donor and donee; evidence of donor’s
intent to make a gift; value of gift; why was gift made
(any promises or other inducements?)
Meeting Defenses
 Services Provided
 Capacity of victim; what were the services; were
they needed; how often were services provided;
how well performed; were supplies provided; value
of services vs. amount paid for them
 Permission
 Capacity of the elder; evidence of actual permission;
promises or other inducements; who benefited; how
often was permission used; value of items obtained;
did elder understand what permission was used to
do
Meeting Defenses
 “Quid Pro Quo”
 Capacity of the elder; was the marriage reasonable
given the relationship between the parties; was the
suspect legally able to marry; mutual consideration;
any suspect misrepresentations
 Favor
 Capacity of the elder; who benefits from the favor;
what did elder receive in return; is the benefit
reasonable; how does it fit prior financial planning
and actions of the elder; elder’s relationship to the
business or person
Meeting Defenses
 Lack of Knowledge
 (“But I do not know her PIN”); what is the
contrary evidence; access to information;
other acts for same goal (e.g., forged her
signature in case of misuse of ATM)
 See: T.H. Baron (1999) “Financial
Exploitation of Infirm Adults: A
Prosecutor’s Perspective” Victimization of
the Elderly and Disabled
Thank You!
 Questions?
 Thank you!
 Candace Heisler
cjheisler@AOL.com