Building A Financial Abuse Case for the Criminal Justice System Candace J. Heisler © Candace J. Heisler, 2005

Changing Role of APS  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 Physical Evidence Witnesses 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?  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 Preponderance of EvidencePreponderance of Evidence Clear and ConvincingClear and Convincing Beyond a Reasonable DoubtBeyond a Reasonable Doubt Must work to the criminal burden if want to secure a convictionMust work to the criminal burden if want to secure a conviction

BURDEN OF PROOF Reasonable suspicion Probable cause Beyond a reasonable doubt

Preponderance The greater weight of the evidenceThe greater weight of the evidence Sufficient to incline a fair and impartial mind to one side of the issue rather than the otherSufficient to incline a fair and impartial mind to one side of the issue rather than the other Slightly more than 50-50Slightly more than Civil burden of proofCivil burden of proof Substantiate an allegationSubstantiate 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  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?  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 u“Elder” is a person 65 or older u“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 $  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  Theft (grand and petit) PC 484a, 487  Burglary PC 459  Forgery PC 470  Credit Card Misuse PC 484d-484j  Identity Theft PC  Perjury/Making a False Statement PC 118  Do you have a current Penal Code?  CALJIC (Jury Instructions)

Meeting Defenses  Importance of investigating possible defenses  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 promisesRequires 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 transactionMust 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 proposedMust have the legal capacity to make an intelligent choice whether or not to do what is proposed

Elements of Consent Mere passivity is not consentMere passivity is not consent Consent requires a free will and positive cooperation in the actionConsent requires a free will and positive cooperation in the action See CALJIC 1.23See 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  Isolation  Siege mentality  Dependency  Sense of powerlessness  Sense of fear and vulnerability  Being kept unaware  Singer, 1998

Isolation  The suspect  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  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  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  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  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  The victim is kept unaware that the manipulator has constructed a “pseudo- world” 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?  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  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  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 Victim Children Neighbors Doctor, Dentist Clergy Clubs Friends Lawyer Hairdresser Vet Mail Carrier CPA Bank

The Investigation Build a clear, complete chronologyBuild a clear, complete chronology What every witness knowsWhat every witness knows Victim's level of functioning in the pastVictim's level of functioning in the past Statements and surrounding circumstances such as spontaneous statements, admissionsStatements and surrounding circumstances such as spontaneous statements, admissions Try to pinpoint exact datesTry to pinpoint exact dates Evidence ordered and collectedEvidence 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  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”  Exact Quotations  Demeanor and Emotions  Complete Descriptions  The Setting

Presenting the Case to the Criminal Justice System  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 