1 undue influence the criminal justice response copyright © 2006 ywca omaha, nebraska omaha ne...

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Undue Influence

The Criminal Justice Response

Copyright © 2006YWCA Omaha, NebraskaOmaha NE 68131-3577

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Introductions

Name

Agency

Number of years in the field

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Undue Influence

Power and control

Exploit trust, dependency and fear of another

Purpose: deceptively gain decision making control

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Undue Influence

More than persuasion or salesmanship

Pattern of tactics

Brainwashing – cults, hostages, POWs

Method to commit a crime

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Case Example: Martha Bedford

Recently widowed

Handy man

Several trusts worth millions

Moves and isolates

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Martha Bedford

APS case?

Civil case?

Criminal case?

All or some of the above?

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Importance to Criminal Justice

Cases that “don’t seem right”

Explain victim behaviors

Assist in determining if crime committed

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Importance to Criminal Justice

Disprove offenders’ justifications

Link expertise in DV, stalking, and grooming in SA

Multidisciplinary

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Purpose of the Training

Enhance victim safety by identifying and responding effectively to UI

Hold abusers accountable through investigation and prosecution of UI cases

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Abuse, Neglect and Exploitation

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Elder Abuse

Age

Gender

Relationship

Location

All racial, ethnic, religious, and economic groups

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Elder Abuse

Physical violence

Sexual abuse

Emotional abuse

Financial exploitation

Neglect

Abandonment

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Financial Exploitation

The illegal or improper use of an elder's funds, property, or assets.

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Forms of Financial Exploitation

Cashing checks without permission

Forging signature

Misusing or stealing $ or possessions

Coercing/deceiving into signing documents

Improper use of conservatorship, guardianship, or power of attorney

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Generational and Cultural Considerations

Who owns resources?

Freely given?

Freely shared?

Extended family in same household?

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Threats Intimidation

Guilt &Blame

Using privilege

Isolation

Using familymembers

Emotional abuse

Ridiculing values

spiritualitybeliefs

Abusing dependencies

Neglect

Financialexploitation

Power and

Control

Family Violence in Later Life

Wisconsin Coalition Against Domestic ViolenceThis diagram is based on the Power and Control/Equality wheels

developed by the Domestic Abuse Intervention Project, Duluth, MN

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Stalking

Conduct directed at a specific person that causes fear

Repeated behaviors

Purpose: to control victim or instill fear

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Grooming

Double life of the suspect

Target based on vulnerability

Often develop relationship

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Case Example: Norman

Video: “I’d Rather Be Home”

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Exercise: I’d Rather Be Home

What forms of abuse or tactics were used?

How similar to DV?

APS?

Civil?

Criminal?

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Exercise: Barriers

List barriers victim’s face to living free from abuse in later life

Your small group has 2 MINUTES!

Group with longest list wins

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Dynamics of Undue Influence

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Case Example

Movie: “Gaslight”

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Exercise: “Gaslight”

Based on her behavior, what could be going on with Paula?

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Undue Influence

Substitution of one person’s will for the true desires of another

Not persuasion and sales techniques

Includes fraud, duress, threats, or other deceits

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Victims

Under the right circumstances, anyone could be susceptible to UI

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Victims: Increased Vulnerability

Lonely

Naive, uninformed

Ill or cognitively impaired

Adverse life conditions

Fatigued, exhausted, distracted

Frightened

Dependent

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Suspects

Opportunists 

Career criminals

Fiduciary gained elder’s trust/confidence

Caregivers

Family members, trusted friends or others

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Targeting

Find a likely target

Gain confidence of potential victim

Induce dependence through exploitation of weakness

Gain dominance of victim’s life circumstances and wealth

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Undue Influence: Common Tactics

Create Fear

Create Dependencies

Create Lack of Faith in Own

Abilities

Induce Shame and Secrecy

Perform Intermittent

Acts of Kindness

Keep Unaware

Isolate From Others and Information

Prey on Vulnerabilities

Financial Exploitation

Copyright © 2006 YWCA Omaha, Nebraska

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Exercise: Indicators/Questions

List 2 – 4 victim indicators

List 2 – 4 suspect indicators

List 2 – 4 non-leading questions

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Case Example

Video: “I’d Rather Be Home”

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Key Points

Common victim reactions

Often not recognized

Ongoing, trusted relationship

Grooming behavior

Pattern of tactics

Indicators warrant further investigation

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Not All Older People Experience UI

Gift giving

New relationships/partners

New caregivers

Changes in wills

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Consent and Other Suspect Justifications

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Exercise: Justifications

What are common suspect justifications for financial exploitation?

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Consent

Three elements

Mental capacity

Knowledge of true nature of act

Acted freely and voluntarily

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Legal Competency

Not the same as capacity

Legal judgment Able to testify or participate in a criminal trial Control of one’s life or property

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Decision Making Capacity

Ability to understand circumstances and consequences of a decision

Can fluctuate Reduced capacity increases vulnerability to UI

Increases dependence Decreases ability to make good decisions & resist

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Knowledge of True Nature of Act

Suspect’s tactics prevent such knowledge Isolate from others and information Keep unaware Create lack of faith in own abilities Create dependency Create fear

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Act Freely and Voluntarily

UI is the substitution of one person’s will for the true desires of another

Victims of UI cannot act freely and voluntarily

“Apparent” not actual consent

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Exercise: Consent/UI

Adult daughter contacted you about Mrs. B

Mrs. B signed deed and gave home to in-home caregiver (6 months)

Caregiver says Mrs. B wants her to have home

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Exercise: Consent/UI

Group 1: Questions to explore elements of consent

Group 2: Questions to explore tactics of UI

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Suspect Justifications

How do you handle these justifications?

What will you investigate?

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Key Points

Suspects justify actions

Apparent versus actual consent

Next – legal elements

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Legal Framework

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Investigation

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Investigative Overview

More than today’s incident Historical patterns Changes over time Suspect’s involvement

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Exercise: Sources of Evidence

What are potential sources of evidence in an UI case?

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Exercise: Collecting Evidence

Using the undue influence wheel and legal elements, decide:

What types of evidence will you collect?

Who are the witnesses?

How will you obtain the evidence?

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Investigative Framework

Legal Elements Subject to UI Opportunity to exercise UI Disposition or intent to exercise UI Result was the effect of UI

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Create Fear

Create Dependencies

Create Lack of Faith in Own

Abilities

Induce Shame and Secrecy

Perform Intermittent

Acts of Kindness

Keep Unaware

Isolate From Others and Information

Prey on Vulnerabilities

Financial Exploitation

Investigative Framework Tactics

Copyright © 2006 YWCA Omaha, Nebraska

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Exercise: Collecting Evidence

Using the undue influence wheel and legal elements, decide:

What types of evidence will you collect?

Who are the witnesses?

How will you obtain the evidence?

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Proving Undue Influence

Witnesses regarding victim's Health Personal and financial losses Behavior patterns Throughout day and over time

The victim’s home

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Omaha Case Example

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Interviewing Considerations

Hearing and vision

Literacy

Dementia

Sundowning

Rapport

Logistics

Content flow

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Victim Interview: Videotaping

Consent issues

Potential use at trial Crawford v. Washington

Victim assessment

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Victim Assessment

Health

Responsiveness

Substance abuse

Education

Language Demeanor

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Undue Influence Expert

Marshal and present case facts Beyond common knowledge Assess what happened Credibility of witnesses Educate Myths and misconceptions about consent,

persuasion

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What the Expert Can Discuss

Behaviors of victims

Undue influence

Not good salesmanship

Facts consistent with UI

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What The Expert Cannot Say

Usually cannot conclude: UI occurred Suspect used UI Victim subjected to UI

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What You Need To Know

Does the expert use any particular model?

Is the expert familiar with other models? If another model were used, would the

conclusion be different?

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What Expert Needs

Case file Videotaped interviews

Assessments

Relationship between victim and suspect

Any civil litigation files

Health and social history of victim

Losses

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Multidisciplinary Response

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Undue Influence

The Criminal Justice Response

Copyright © 2006YWCA Omaha

Omaha NE 68131-3577