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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.). Undue Influence – Financial Crimes. Theft Larceny Robbery

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Undue Influence

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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.)


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 InfluenceThank You!

Tristan D. Svare

(909) 387-6533

Email tsvare@sbcda.org


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