Tristan D Svare Deputy District Attorney San Bernardino County CA Family Violence Unit Elder Abuse Prosecution 909 3876533 and email tsvaresbcdaorg With Special Thanks to Candace Heisler Esq ID: 431405
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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.)Slide2
Undue Influence – Financial Crimes
Theft
Larceny
Robbery
False Pretenses
Trick or Device
Embezzlement
… Undue Influence…?Slide3
Undue Influence – Other Crimes
Newer Crimes
Identity Theft
Credit Card Theft
Perjury
Forgery
What Else?Slide4
Undue Influence - Anticipate Defenses
Consent?
Knowledge? Permission?
Investment?
Mistake?
Salary / Payment? Quid Pro Quo?
Gift? Inheritance?
Debt?
True Ownership? POA or Legal Authority?Slide5
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 WorkSlide6
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…Slide7
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)Slide8
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)Slide9
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”Slide10
Undue Influence - Components
Isolation
Siege Mentality
Dependency
Sense of Powerlessness
Sense of Fear and Vulnerability
Kept Unaware
= Ripe for Elders, and Persons with DisabilitiesSlide11
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 HealthSlide12
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 VersaSlide13
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 LifeSlide14
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 SuspectSlide15
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 AssistanceSlide16
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 RefugeSlide17
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”Slide18
Undue Influence - Investigations
Financial Records
Medical / Psych Records
Oral / Family History
Lots of Leg Work!Slide19
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)Slide20
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)Slide21
Undue Influence - Investigations
Questions to Ask
Has Victim Suffered A Loss?
Ill?
Depressed?
Isolated?
What Is the Suspect / Victim and Outside World Relationship?Slide22
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)?Slide23
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?Slide24
Undue Influence - Investigations
What Was Victim Like BEFORE Suspect Entered The Scene?
Monetary Habits?
Patterns?
Generosity? Frugality?
Record Keeping?
Confidants and Reliable Assistants?Slide25
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?Slide26
Undue Influence - Investigations
The X-Curve
Timelines
(Cesar “Chayo” Reyes, Detective – RETIRED – LAPD)Slide27
Undue Influence - Defenses
Consent?
Knowledge? Permission?
Investment?
Mistake?
Salary or Payment? Quid Pro Quo?
Gift
o
r Early Inheritance
?
Debt?
True Ownership? POA or Legal Authority?Slide28
Undue Influence - Prosecution
Selling Your Case to The DA
Summary
Records
Transcripts
Charts
Schedule A Meeting!Slide29
Undue Influence - Court
Experts – National, Local, or Yourself!
Explaining Means and Manner of Not Having Valid Consent, only Apparent ConsentSlide30
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 CentersSlide31
Undue Influence
Thank You!
Tristan D. Svare
(909) 387-6533
Email tsvare@sbcda.org