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Undue Influence Tristan D. Svare

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Presentation on theme: "Undue Influence Tristan D. Svare"— Presentation transcript:

1 Undue Influence Tristan D. Svare
Deputy District Attorney, San Bernardino County, CA Family Violence Unit – Elder Abuse Prosecution (909) and (With Special Thanks to Candace Heisler, Esq.)

2 Undue Influence – Financial Crimes
Theft Larceny Robbery False Pretenses Trick or Device Embezzlement … Undue Influence…?

3 Undue Influence – Other Crimes
Newer Crimes Identity Theft Credit Card Theft Perjury Forgery What Else?

4 Undue Influence - Anticipate Defenses
Consent? Knowledge? Permission? Investment? Mistake? Salary / Payment? Quid Pro Quo? Gift? Inheritance? Debt? True Ownership? POA or Legal Authority?

5 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

6 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…

7 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)

8 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)

9 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”

10 Undue Influence - Components
Isolation Siege Mentality Dependency Sense of Powerlessness Sense of Fear and Vulnerability Kept Unaware = Ripe for Elders, and Persons with Disabilities

11 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

12 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

13 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

14 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

15 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

16 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

17 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”

18 Undue Influence - Investigations
Financial Records Medical / Psych Records Oral / Family History Lots of Leg Work!

19 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)

20 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)

21 Undue Influence - Investigations
Questions to Ask Has Victim Suffered A Loss? Ill? Depressed? Isolated? What Is the Suspect / Victim and Outside World Relationship?

22 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)?

23 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?

24 Undue Influence - Investigations
What Was Victim Like BEFORE Suspect Entered The Scene? Monetary Habits? Patterns? Generosity? Frugality? Record Keeping? Confidants and Reliable Assistants?

25 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?

26 Undue Influence - Investigations
The X-Curve Timelines (Cesar “Chayo” Reyes, Detective – RETIRED – LAPD)

27 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?

28 Undue Influence - Prosecution
Selling Your Case to The DA Summary Records Transcripts Charts Schedule A Meeting!

29 Undue Influence - Court
Experts – National, Local, or Yourself! Explaining Means and Manner of Not Having Valid Consent, only Apparent Consent

30 Undue Influence – Looking Ahead
National Resources Teamwork and Resources! Coordinated Community Response, MDTs FASTs, and Forensic Centers and Family Justice Centers

31 Undue Influence Thank You!
Tristan D. Svare (909)

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