Undue Influence - YouTube

- We see undue influence coming up on most often

in financial exploitation cases,

and it's a situation where a perpetrator

basically gains control over the victim

through doing things like isolating them

from their family and their friends and their community,

depriving them of the things that are meaningful to them

in their lives.

Threatening them sometimes.

Undermining their confidence.

Really working to create an extreme dependence

of the victim on the perpetrator.

So then they starting asking the victim for money

and asking them for assets of the victim,

and the victim very often says yes,

because they are under the undue influence of the perpetrator.

So as prosecutors, we look at those cases,

and we say, you know, can we show that this victim

didn't truly consent to give the perpetrator their money?

Can we show that the victim acted out of undue influence

versus out of true consent?

And if we have enough evidence

to show that the victim really didn't truly consent

to that transaction, we can prosecute it.

- This type of undue influence

can more easily occur

in people who have cognitive changes

and weakened capacity,

but it can happen to people with clear capacity

if there is sufficient strategic efforts

to change their beliefs

and to provide them with fallacious information.

- And are there times in people's lives

or certain types of people

who might be more susceptible?

Who have capacity but might be more susceptible

to undue influence?

- There are a number of issues that can occur in somebody

with full cognitive capacity,

wherein they are vulnerable and weakened.

Those would be times of grieving, emotional loss,

loss of a relationship,

serious medical illness.

Any number of things that weaken my sense

of personal strength and identity

could be preyed upon by somebody else

who thereby tries to meet my needs

but for their purpose.

- And do you have advice for prosecutors,

if they might suspect undue influence in a case,

how do they tease out whether undue influence is occurring,

and are there experts that they could work with

that can help them in that?

- It is something that the prosecutors

must always be aware of,

as do physicians who are evaluating.

Many times something doesn't fit together

in the story.

Dramatic shifts of values, beliefs

on the part of an apparently capable person

would suggest something is going on

that is suspicious.

We also will look to understand

what--what parties gain on decisions that are made

by a person who has an apparent capacity.

And if preferentially the very person gains

financially, socially, sexually

at the hands of their, quote, victim,

that should raise suspicion

that there's an alternative motive.

And one often has to look behind the scenes

at what's happening.

A prosecutor should look carefully and be aware

if there's a pivotal point in time,

is this client undergoing life changes?

Is there history of depression?

So getting access to medical records,

other collateral information, other family members

are important items.

I have seen cases in which there's a family member

exploiting an older adult,

and no one talked to the other siblings

in the family, who would have had

very valuable information.

So I think it's important

not to just rely on one family member

or one party in a family

when there are multiple parties in that family.

They each may have a different perspective

about what was happing.

I often find prosecutors somewhat subdued

in their enthusiasm to pursue prosecution

of undue influence,

because the statutes around the country

do not clearly embody this as a crime.

Instead prosecutors therefore back away,

because they fear it's too hard to pursue.

What we recommend is really to conceptualize it

as larceny or theft by deceit,

by criminal maliciousness,

and find statutes that do fit

and pursue that.

Now, I think an expert witness coming in on a case like this

can talk about the nature and patterns

of undue influence

that can be very supportive to the case.

So I would encourage prosecutors

to look beyond just the term,

"prosecuting undue influence"

and try to look to what actually was gained

in that undue influence

and look at prosecuting that action.

- Some states have criminal statutes

that actually mention undue influence.

As a former prosecutor,

I feel like those states are the lucky ones.

But New York State, where we're sitting right now,

does not,

and so I've had trials where the judge

has warned me, "Don't use the words undue influence,"

because it's going to be too prejudicial to the jury.

But then we've checked with the judge,

and it's okay to talk about the facts

that actually comprise the undue influence,

and we could use that to prove the theory of our case,

which might be a theft by deception,

like larceny by false pretenses

or to show the relationship between the abuser--

I should say alleged exploiter--

and the victim, and that's what we do.

It's interesting because

if you have a victim that's completely impaired,

it's tough to argue undue influence, right?

So if that victim was completely impaired

at the time of the transfer,

you may be cutting against yourself a little bit

to say that person was in a relationship

where they were manipulated,

and there was power and control.

I have found that I've used it

usually where the victim does have capacity

or has maybe some challenges to cognition,

and I've used it in that situation a lot,

where because of the fact

that they have challenges to cognition,

they were easily manipulated by the alleged exploiter

because of their relationship.

- I have to be creative.

Without referring to undue influence,

I have to be able to prove beyond a reasonable doubt

that that consent was taken away through manipulation.

- And what sorts of information

or what sorts of things might you display

or tell a jury in order to get that point across?

- What I try to do is show a profile of my victim

prior to meeting the suspect

and then how the victim's behavior often changed

after meeting the suspect.

Most times, suspect is gonna say as their defense,

"She gave it to me, he gave it to me,"

or, "It was a loan."

I also try to focus upon

what was it about the suspect

that led the victim to believe in the suspect?

What kind of statements did the suspect make

that engendered some kind of connection with the victim?

And I often find that the suspect

has just out-and-out lied to them.

- Is a capacity evaluator able to explain undue influence

and assess whether undue influence has happened

in a specific case?

- An evaluator can lend, I think,

very important information.

There are cases in which,

when I have an individual alone,

they signal to me undue influence.

They may do that very subtly.

They may, by emotional distress

when I bring up certain topics,

that warrant me to explore further.

When I'm doing an evaluation

and I want to know, again,

who brought the patient to my office?

Is this the person that's gonna derive some benefit?

Is this the person who arranged for them to see an attorney

of their choosing?

So there's collateral information,

but really the emotional tone of the person is important.

And I do, again, underline how strongly important it is

to have the evaluation occur

absent anybody who may be influencing them,

and only then do we get more candid appraisals.

I recently had someone who there's not much question

in protective services' mind, my mind actually,

that they're being exploited,

and yet in the presence of that patient,

their exploiter said to them,

"You know he's gonna trick you to give him his answer."

And it was very clear that there was undue influence.

She then was escorted out by the police,

and at the end he said, "No, she's fine.

Everything's fine, everything's fine."

And I said, "Would you like someone else

to manage your money?"

And he said, "Yes."

So one has to look at very subtle things

in a psychiatric assessment.

- I have a case where an elderly man

was a recent widower,

and he had lost his wife of many years,

and his wife had been the person

who took care of the family's assets

and basically ran the home.

He had a mild developmental disability,

and he'd also had a number of physical ailments in his life

that made him quite vulnerable.

So when his wife died, he was bereft,

and he was very much alone in life,

and a woman who was about 20 years younger than him

met him, knew he had significant financial assets,

and convinced him very quickly to move in with her.

She then took over his finances.

She promised him she'd handle everything for him,

and it would all be taken care of,

and he consented because he trusted her

and because he depended on her,

and he believed that she would take care of him.

So in the end, he ended up losing

literally all the assets he had to her,

and we ended up prosecuting her for theft.

And even though we don't have an undue influence statute,

we were able to successfully prosecute her

because our theory was that his consent

was not true consent.

It was consent based on a manipulation,

the lies, the isolation,

and all these other tactics

that she had perpetrated on him,

and we were successful in our prosecution of that case.