1 Undue Influence The Criminal Justice Response Copyright © 2006 YWCA Omaha, Nebraska Omaha NE

2 Introductions Name Agency Number of years in the field

3 Undue Influence Power and control Exploit trust, dependency and fear of another Purpose: deceptively gain decision making control

4 Undue Influence More than persuasion or salesmanship Pattern of tactics Brainwashing – cults, hostages, POWs Method to commit a crime

5 Case Example: Martha Bedford Recently widowed Handy man Several trusts worth millions Moves and isolates

6 Martha Bedford APS case? Civil case? Criminal case? All or some of the above?

7 Importance to Criminal Justice Cases that “don’t seem right” Explain victim behaviors Assist in determining if crime committed

8 Importance to Criminal Justice Disprove offenders’ justifications Link expertise in DV, stalking, and grooming in SA Multidisciplinary

9 Purpose of the Training Enhance victim safety by identifying and responding effectively to UI Hold abusers accountable through investigation and prosecution of UI cases

10 Abuse, Neglect and Exploitation

11 Elder Abuse Age Gender Relationship Location All racial, ethnic, religious, and economic groups

12 Elder Abuse Physical violence Sexual abuse Emotional abuse Financial exploitation Neglect Abandonment

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

14 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

15 Generational and Cultural Considerations Who owns resources? Freely given? Freely shared? Extended family in same household?

16 Power and Control Family Violence in Later Life Wisconsin Coalition Against Domestic Violence This diagram is based on the Power and Control/Equality wheels developed by the Domestic Abuse Intervention Project, Duluth, MN

17 Stalking Conduct directed at a specific person that causes fear Repeated behaviors Purpose: to control victim or instill fear

18 Grooming Double life of the suspect Target based on vulnerability Often develop relationship

19 Case Example: Norman Video: “I’d Rather Be Home”

20 Exercise: I’d Rather Be Home What forms of abuse or tactics were used? How similar to DV? APS? Civil? Criminal?

21 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

22 Dynamics of Undue Influence

23 Case Example Movie: “Gaslight”

24 Exercise: “Gaslight” Based on her behavior, what could be going on with Paula?

25 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

26 Victims Under the right circumstances, anyone could be susceptible to UI

27 Victims: Increased Vulnerability Lonely Naive, uninformed Ill or cognitively impaired Adverse life conditions Fatigued, exhausted, distracted Frightened Dependent

28 Suspects Opportunists Career criminals Fiduciary gained elder’s trust/confidence Caregivers Family members, trusted friends or others

29 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

30 Undue Influence: Common Tactics Financial Exploitation Copyright © 2006 YWCA Omaha, Nebraska

31 Exercise: Indicators/Questions List 2 – 4 victim indicators List 2 – 4 suspect indicators List 2 – 4 non-leading questions

32 Case Example Video: “I’d Rather Be Home”

33 Key Points Common victim reactions Often not recognized Ongoing, trusted relationship Grooming behavior Pattern of tactics Indicators warrant further investigation

34 Not All Older People Experience UI Gift giving New relationships/partners New caregivers Changes in wills

35 Consent and Other Suspect Justifications

36 Exercise: Justifications What are common suspect justifications for financial exploitation?

37 Consent Three elements Mental capacity Knowledge of true nature of act Acted freely and voluntarily

38 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

39 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

40 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

41 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

42 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

43 Exercise: Consent/UI Group 1: Questions to explore elements of consent Group 2: Questions to explore tactics of UI

44 Suspect Justifications How do you handle these justifications? What will you investigate?

45 Key Points Suspects justify actions Apparent versus actual consent Next – legal elements

46 Legal Framework

47 Investigation

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

49 Exercise: Sources of Evidence What are potential sources of evidence in an UI case?

50 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?

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

52 Financial Exploitation Investigative Framework Tactics Copyright © 2006 YWCA Omaha, Nebraska

53 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?

54 Proving Undue Influence Witnesses regarding victim's Health Personal and financial losses Behavior patterns Throughout day and over time The victim’s home

55 Omaha Case Example

56 Interviewing Considerations Hearing and vision Literacy Dementia Sundowning Rapport Logistics Content flow

57 Victim Interview: Videotaping Consent issues Potential use at trial Crawford v. Washington Victim assessment

58 Victim Assessment Health Responsiveness Substance abuse Education Language Demeanor

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

60 What the Expert Can Discuss Behaviors of victims Undue influence Not good salesmanship Facts consistent with UI

61 What The Expert Cannot Say Usually cannot conclude: UI occurred Suspect used UI Victim subjected to UI

62 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?

63 What Expert Needs Case file Videotaped interviews Assessments Relationship between victim and suspect Any civil litigation files Health and social history of victim Losses

64 Multidisciplinary Response

65 Undue Influence The Criminal Justice Response Copyright © 2006 YWCA Omaha Omaha NE