building a financial abuse case for the criminal justice system candace j. heisler [email protected]...

Building A Financial Building A Financial Abuse Case for the Abuse Case for the Criminal Justice Criminal Justice SystemSystem

Candace J. HeislerCandace J. Heisler

[email protected]@AOL.com

© Candace J. Heisler, 2005© Candace J. Heisler, 2005

Changing Role of APSChanging Role of APS

Increased investigative responsibilitiesIncreased investigative responsibilities See more criminal conductSee more criminal conduct Often the first responderOften the first responder May well be more expert in subject than May well be more expert in subject than

law enforcementlaw enforcement Increasingly are building cases for the Increasingly are building cases for the

criminal justice systemcriminal justice system

AgendaAgenda

Framework for InvestigationsFramework for Investigations Elements of CrimesElements of Crimes Defenses and Meeting ThemDefenses and Meeting Them Role of the VictimRole of the Victim Collection of EvidenceCollection of Evidence

What is a Criminal What is a Criminal Investigation?Investigation?

The orderly collection, The orderly collection, examination, searching and examination, searching and gathering of factual information gathering of factual information that answers questions or solves that answers questions or solves problemsproblems

Non-judgmental processNon-judgmental process

FRAMEWORK FOR INVESTIGATIONSFRAMEWORK FOR INVESTIGATIONS

Physical Evidence

Witnesses

Confessions

Investigative Standards: Investigative Standards: The “Mindset”The “Mindset”

Cases built on Cases built on factsfacts Bad people do not Bad people do not

make good factsmake good facts

INVESTIGATIVE GOALSINVESTIGATIVE GOALS

WHAT HOW

Building the Building the InvestigationInvestigation

What happened?What happened? Can you explain from beginning to end what Can you explain from beginning to end what

happened and describe the supporting evidence to happened and describe the supporting evidence to someone who knows nothing about the situation? someone who knows nothing about the situation?

Who did it?Who did it? Where did it happen?Where did it happen? How did it happen?How did it happen? When did it happen? When did it happen?

And finally, and if it can be determined,And finally, and if it can be determined, Why did it happen?Why did it happen?

Burdens Of ProofBurdens 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 Must work to the criminal burden if want to secure a convictionif want to secure a conviction

BURDEN OF PROOFBURDEN 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 Sufficient to incline a fair and impartial mind to one side of the issue rather than the otherone side of the issue rather than the other

• Slightly more than 50-50Slightly more than 50-50

• Civil burden of proofCivil burden of proof

• Substantiate an allegation Substantiate an allegation

•

Beyond a Reasonable DoubtBeyond a Reasonable Doubt

Not a mere possible doubt; because everything Not a mere possible doubt; because everything relating to human affairs is open to some relating to human affairs is open to some possible or imaginary doubt. possible or imaginary doubt.

That state of the case which after the entire That state of the case which after the entire comparison and consideration of all the comparison and consideration of all the evidence, leaves the minds of the jurors in that evidence, leaves the minds of the jurors in that condition that condition that they cannot say they feel an they cannot say they feel an abiding convictionabiding conviction of the truth of the charge.” of the truth of the charge.”

Penal Code §1096Penal Code §1096

Crawford v. WashingtonCrawford v. Washington

United States Supreme Court decisionUnited States Supreme Court decision Interprets the US ConstitutionInterprets the US Constitution

March 8, 2004March 8, 2004 Greatly restricts the use of hearsay Greatly restricts the use of hearsay

statementsstatements Invalidates most statements under EC 1380Invalidates most statements under EC 1380

The FactsThe Facts Crawford accompanied by his wife, went to the Crawford accompanied by his wife, went to the

home of a man Crawford believed had tried to home of a man Crawford believed had tried to rape his wife and stabbed him. rape his wife and stabbed him.

At trial Crawford claimed he acted in self defense.At trial Crawford claimed he acted in self defense. He invoked a Washington legal privilege to keep He invoked a Washington legal privilege to keep

his wife from testifying against him.his wife from testifying against him. The court declared her unavailable and allowed The court declared her unavailable and allowed

the prosecution to offer her statement to police the prosecution to offer her statement to police that contradicted the defendant’s account.that contradicted the defendant’s account.

Defendant objected stating the receipt of her Defendant objected stating the receipt of her statement violated his right of confrontationstatement violated his right of confrontation


Witness statements which are testimonial Witness statements which are testimonial in nature, including out of court in nature, including out of court statements and prior testimony, are statements and prior testimony, are inadmissibleinadmissible unless unless Declarant is unavailableDeclarant is unavailable

Defendant had a prior opportunity to cross Defendant had a prior opportunity to cross examine the declarantexamine the declarant

What Is Legally What Is Legally Unavailable?Unavailable?

DeadDead So ill that the witness cannot be brought So ill that the witness cannot be brought

to courtto court DelusionalDelusional Legally incompetentLegally incompetent

With exercise of due diligence, cannot With exercise of due diligence, cannot locate the witnesslocate the witness


What is testimonial?What is testimonial? Statements received for their truthStatements received for their truth If not offered for the truth, not testimonialIf not offered for the truth, not testimonial

Incompetence or insanityIncompetence or insanity Improbability of legal consentImprobability of legal consent Lack of belief suspect legal consentLack of belief suspect legal consent

Is it Testimonial?Is it Testimonial?

Formality of the statementFormality of the statement Affidavit vs. off-hand remarkAffidavit vs. off-hand remark

Why was statement made? Why was statement made? Get help or build a caseGet help or build a case

Did declarant expect that the statement would be Did declarant expect that the statement would be available for use at a later trial?available for use at a later trial? Call to 911 was to summon help not to provide statement for Call to 911 was to summon help not to provide statement for

trialtrial

Was the statement made to governmental officials Was the statement made to governmental officials acting to advance a criminal investigation or acting to advance a criminal investigation or prosecution?prosecution?

What is Testimonial?What is Testimonial?

Structured or formal Structured or formal interrogations and interviews by interrogations and interviews by law enforcementlaw enforcement

Interviews by other governmental Interviews by other governmental officials if for litigationofficials if for litigation APSAPS ProsecutorsProsecutors

What Is Testimonial?What Is Testimonial?

Prior testimony at a hearing, before a Prior testimony at a hearing, before a grand jury, or prior trialgrand jury, or prior trial

Statements in depositions or affidavitsStatements in depositions or affidavits Statements made during guilty plea Statements made during guilty plea

proceedingsproceedings

What Is Non TestimonialWhat Is Non Testimonial

Spontaneous StatementSpontaneous Statement Business recordsBusiness records Statements in furtherance of a conspiracyStatements in furtherance of a conspiracy Dying declarations Dying declarations A chance remark overheard by an officerA chance remark overheard by an officer Statements to medical professionals for Statements to medical professionals for

treatment treatment Statements to non governmental third partiesStatements to non governmental third parties

Friends, family, acquaintancesFriends, family, acquaintances


Inapplicable if the declarant is Inapplicable if the declarant is unavailable because of defendant’s unavailable because of defendant’s misconductmisconduct Intimidation?Intimidation?

Has suspect called you since the arrest?Has suspect called you since the arrest? Threats or promises?Threats or promises? Hide the victim?Hide the victim? Sham marriage?Sham marriage? Bench warrants after case filedBench warrants after case filed

Implications of CrawfordImplications of Crawford

Still need to fully interview the victimStill need to fully interview the victim Non-testimonial usesNon-testimonial uses Abuser’s conduct, “forfeiture” Abuser’s conduct, “forfeiture”

Contact the victim to document any contact by Contact the victim to document any contact by abuser, any violations of no-contact orders, abuser, any violations of no-contact orders, threatsthreats

Work closely with criminal justice system toWork closely with criminal justice system to Get cases charged promptlyGet cases charged promptly Resist continuances when possibleResist continuances when possible Conditional examinationsConditional examinations


Must make victim available to testify and Must make victim available to testify and be cross examinedbe cross examined More victims will be subpoenaed and More victims will be subpoenaed and

required to testifyrequired to testify Victim participation will be more importantVictim participation will be more important

Corroborate!Corroborate! Who else knowsWho else knows

Victim and suspectVictim and suspect


Identify other sources of informationIdentify other sources of information Health care professionalsHealth care professionals

Paramedics and EMTsParamedics and EMTs Family and friendsFamily and friends Who did victim tell firstWho did victim tell first Importance of asking about and Importance of asking about and

documenting the victim's demeanor and documenting the victim's demeanor and reason for making contactreason for making contact Not for police action but for safety, health needs, Not for police action but for safety, health needs,

seek helpseek help

Crimes OverviewCrimes Overview

Multiple crimes can occur within a single Multiple crimes can occur within a single event; each can be chargedevent; each can be charged

Can charge general crimes with elder Can charge general crimes with elder abuseabuse

Can charge prior acts within statute of Can charge prior acts within statute of limitationslimitations

Importance of investigating more than Importance of investigating more than just what is reportedjust what is reported

Penal Code 368(a) Penal Code 368(a)

Legislative FindingsLegislative Findings

Crimes against elderly and dependent adults Crimes against elderly and dependent adults

are deserving of special considerationare deserving of special consideration

Protections because they may be confused, on Protections because they may be confused, on

medications, mentally or physically impaired or medications, mentally or physically impaired or

incompetent, and incompetent, and

Therefore less able to protect themselves, to Therefore less able to protect themselves, to

understand and report criminal conduct, or understand and report criminal conduct, or

testify on their own behalftestify on their own behalf

DefinitionsDefinitions

““Elder”Elder” is a person 65 or older is a person 65 or older

““Caretaker”Caretaker” is any person who has is any person who has

the care, custody, or control of, or who the care, custody, or control of, or who

stands in a position of trust with, an stands in a position of trust with, an

elder or dependent adultelder or dependent adult

DefinitionsDefinitions

““Dependent Adult” Dependent Adult” a person 18 to 64 a person 18 to 64 who has a physical or mental limitation which who has a physical or mental limitation which

restricts his or her ability to carry out normal restricts his or her ability to carry out normal activities or protect his or her rightsactivities or protect his or her rights

includes persons with physical or includes persons with physical or developmental disabilities, and persons who developmental disabilities, and persons who abilities have diminished because of ageabilities have diminished because of age

Penal Code 368(b)(1)Penal Code 368(b)(1)

Any person who under circumstances or Any person who under circumstances or conditions likely to produce great bodily harm conditions likely to produce great bodily harm or deathor death willfully causes or permits any elder or dependent willfully causes or permits any elder or dependent

adult, to suffer adult, to suffer Knowing or reasonably should know that he or Knowing or reasonably should know that he or

she is an elder or dependent adult,she is an elder or dependent adult, or inflicts thereon or inflicts thereon unjustifiableunjustifiable physical pain or physical pain or

mental sufferingmental suffering

PC 368(b) and (c)PC 368(b) and (c)

PC 368(b)(1) is a felonyPC 368(b)(1) is a felony PC 368(c)PC 368(c)

Same as PC 368(b)(1), except under Same as PC 368(b)(1), except under circumstances circumstances otherother than those likely to than those likely to result in great bodily harm or deathresult in great bodily harm or death

Is a misdemeanor offenseIs a misdemeanor offense

PC 368(d), (e)PC 368(d), (e) Any person (non-caretaker) who violates any Any person (non-caretaker) who violates any

provision of the law relating to theft, provision of the law relating to theft, embezzlement, forgery, fraud, or identity theft embezzlement, forgery, fraud, or identity theft property of an elder or dependent adultproperty of an elder or dependent adult

F/M if taking of moneys, labor, goods, F/M if taking of moneys, labor, goods, services, or real or personal property over services, or real or personal property over $400.00; Misdemeanor if under $400.00.$400.00; Misdemeanor if under $400.00. 368(d) requires that the suspect know or 368(d) requires that the suspect know or

reasonably should know the victim is an elder or reasonably should know the victim is an elder or dependent adultdependent adult

368(e) applies to caretakers; there is no 368(e) applies to caretakers; there is no knowledge elementknowledge element

PC 368(f)PC 368(f)

False imprisonment of an elder or False imprisonment of an elder or

dependent adultdependent adult Using violence, menace, fraud, or deceitUsing violence, menace, fraud, or deceit

Mandatory felonyMandatory felony

Other Financial CrimesOther Financial Crimes

Theft (grand and petit) PC 484a, 487Theft (grand and petit) PC 484a, 487 Burglary PC 459Burglary PC 459 ForgeryForgery PC 470 PC 470 Credit Card Misuse PC 484d-484jCredit Card Misuse PC 484d-484j Identity Theft PC 529-530Identity Theft PC 529-530 Perjury/Making a False Statement PC 118Perjury/Making a False Statement PC 118 Do you have a current Penal Code?Do you have a current Penal Code? CALJIC (Jury Instructions)CALJIC (Jury Instructions)

Meeting DefensesMeeting Defenses

Importance of investigating possible Importance of investigating possible defensesdefenses Prove or disprove themProve or disprove them Part of role as neutral investigatorPart of role as neutral investigator Avoid “surprises”Avoid “surprises” Your own integrity and professionalismYour own integrity and professionalism Brady v. MarylandBrady v. Maryland obligations of the obligations of the

prosecutorprosecutor

Common DefensesCommon Defenses ““My inheritance a little early”My inheritance a little early” Salary or debtSalary or debt GiftGift

ConsentConsent Undue InfluenceUndue Influence

Acting within the scope of legal authorityActing within the scope of legal authority Power of attorneyPower of attorney ConservatorshipConservatorship

Elements of ConsentElements of Consent

• Requires that a person act Requires that a person act freely and freely and voluntarilyvoluntarily, not under the effects of , not under the effects of threats, force, duress, or promisesthreats, force, duress, or promises

• Must have knowledge of the Must have knowledge of the true naturetrue nature of the transactionof the transaction

• Must have the Must have the legal capacitylegal capacity to make an to make an intelligent choice whether or not to do intelligent choice whether or not to do what is proposedwhat is proposed

Elements of ConsentElements of Consent

• Mere passivity is not consentMere passivity is not consent

• Consent requires a free will and positive Consent requires a free will and positive

cooperation in the actioncooperation in the action

• See CALJIC 1.23See CALJIC 1.23

Undue InfluenceUndue Influence

Misuse of role and power to exploit the trust, Misuse of role and power to exploit the trust, dependency, and fear of another to dependency, and fear of another to deceptivelydeceptively gain control over that person’s gain control over that person’s decision making (Margaret Singer)decision making (Margaret Singer)

ManipulationManipulation resulting from a relationship resulting from a relationship between the victim and suspect. Undue between the victim and suspect. Undue influence assesses the impact of the suspect’s influence assesses the impact of the suspect’s behavior on the elder (Bennett Blum)behavior on the elder (Bennett Blum)

Undue InfluenceUndue Influence

Same tactics as used in cults, swindles, Same tactics as used in cults, swindles, hostage taking situations, and prisoner of hostage taking situations, and prisoner of war campswar camps

““Mind games”Mind games” Suspects areSuspects are

OpportunistsOpportunists PredatorsPredators

Components of Undue Components of Undue InfluenceInfluence

IsolationIsolation Siege mentalitySiege mentality DependencyDependency Sense of powerlessnessSense of powerlessness Sense of fear and vulnerabilitySense of fear and vulnerability Being kept unaware Being kept unaware Singer, 1998Singer, 1998

IsolationIsolation

The suspect The suspect Controls all means of communication to Controls all means of communication to

and from the intended victimand from the intended victim Takes advantage of the victim’s personal Takes advantage of the victim’s personal

situation including losses, grief, situation including losses, grief, inexperience with financial management, inexperience with financial management, health changes health changes

Siege MentalitySiege Mentality

The suspect through his or her The suspect through his or her manipulationmanipulation

Creates a “pseudo-world” that is supported Creates a “pseudo-world” that is supported by the surrounding events and conditions by the surrounding events and conditions that the manipulator puts in place that the manipulator puts in place

Other members of the intended victim’s Other members of the intended victim’s family, friends or trusted advisors are family, friends or trusted advisors are characterized to make the victim feel as characterized to make the victim feel as though the outside world is threatening and though the outside world is threatening and menacingmenacing

DependencyDependency

The intended victim becomes The intended victim becomes dependent on the manipulator for care, dependent on the manipulator for care, medical attention, food, daily activities, medical attention, food, daily activities, information, access to the outside information, access to the outside world, access to family and friends, world, access to family and friends, safety, well-being, and ultimately for lifesafety, well-being, and ultimately for life

Sense of PowerlessnessSense of Powerlessness

The results of the manipulated The results of the manipulated isolation, fostered dependency and the isolation, fostered dependency and the siege mentality create a sense of siege mentality create a sense of powerlessness in the intended victim..powerlessness in the intended victim..

The intended victim becomes The intended victim becomes dependent on the manipulator for dependent on the manipulator for information and access to the outside information and access to the outside world.world.

Sense of Fear and Sense of Fear and VulnerabilityVulnerability

Becoming utterly dependent on the Becoming utterly dependent on the suspect for all of the victim’s needs and suspect for all of the victim’s needs and even life leaves the victim believing that even life leaves the victim believing that s/he is completely vulnerable and fearful s/he is completely vulnerable and fearful of going against the manipulationof going against the manipulation

The victim does not seek external help The victim does not seek external help because the suspect’s manipulation has because the suspect’s manipulation has instilled beliefs that the outside world is instilled beliefs that the outside world is menacing and threateningmenacing and threatening

Staying UnawareStaying Unaware

The victim is kept unaware that the The victim is kept unaware that the manipulator has constructed a “pseudo-manipulator has constructed a “pseudo-world” or false reality.world” or false reality.

The intended victim is kept unaware The intended victim is kept unaware that the manipulator has been playing that the manipulator has been playing on the victim’s fears, through the use of on the victim’s fears, through the use of lies, exaggerations, deceptions, and lies, exaggerations, deceptions, and manipulations.manipulations.

Undue Influence and ConsentUndue Influence and Consent

Undue influence focuses on free willUndue influence focuses on free will

Consent requires that a person act freely and Consent requires that a person act freely and voluntarily, not under the effects of threats, voluntarily, not under the effects of threats, force, duress, or promises and has full force, duress, or promises and has full knowledge of the transactionknowledge of the transaction

Undue influence means that the will of the Undue influence means that the will of the suspect overrides the will of the person who suspect overrides the will of the person who gave “consent”gave “consent”

Categories of Categories of InvestigationInvestigation

Victim Risk FactorsVictim Risk Factors Life circumstances from all aspects of victim's lifeLife circumstances from all aspects of victim's life

Dependent RelationshipDependent Relationship Nature of relationship victim has with alleged influencerNature of relationship victim has with alleged influencer

Social ConditionsSocial Conditions Influencer’s techniques used to isolate victim from Influencer’s techniques used to isolate victim from

social supports and “reality” testing to achieve power social supports and “reality” testing to achieve power and compliance over the targetand compliance over the target

Loss or HarmLoss or Harm Dr. Susan Bernatz ModelDr. Susan Bernatz Model

““IDEAL”IDEAL”

II Isolation Isolation DD Dependence on the Perpetrator Dependence on the Perpetrator EE Emotional Exploitation or Exploitation Emotional Exploitation or Exploitation

of of VulnerabilityVulnerability AA Acquiescence Acquiescence LL Loss Loss

Dr. Bennett BlumDr. Bennett Blum

Investigation of Undue Influence Investigation of Undue Influence

Determine:Determine: Has the victim suffered a loss?Has the victim suffered a loss?

Is the victim ill?Is the victim ill?

Is the victim depressed?Is the victim depressed?

Is the victim isolated?Is the victim isolated?

What is the relationship between victim What is the relationship between victim

and suspect?and suspect?

Investigation of Undue InfluenceInvestigation of Undue Influence

Regarding the suspicious eventRegarding the suspicious event Did victim have time to think over the Did victim have time to think over the

transaction?transaction?

Was victim “rushed” to act?Was victim “rushed” to act?

Were promises made? Threats?Were promises made? Threats?

What role does suspect play in victim’s life?What role does suspect play in victim’s life?

Investigation of Undue InfluenceInvestigation of Undue Influence

Did victim have the opportunity to consult Did victim have the opportunity to consult with a neutral third party?with a neutral third party?

Does victim understand the transaction?Does victim understand the transaction? Was the transaction fully explained?Was the transaction fully explained? What events preceded the discussion about What events preceded the discussion about

the transaction?the transaction? What are the relative benefits to victim and What are the relative benefits to victim and

suspect?suspect?

Possible EvidencePossible Evidence

Habits of “victim” in pastHabits of “victim” in past SpendingSpending How made significant decisionsHow made significant decisions Gift-givingGift-giving

Who are the “natural objects of the Who are the “natural objects of the victim’s bounty?”victim’s bounty?” What has been the victim's relationship with What has been the victim's relationship with

them in the past? Recently?them in the past? Recently?


What did the suspect receive vs. what the What did the suspect receive vs. what the victim receivedvictim received What was the consideration?What was the consideration?

Is there a will?Is there a will? Recent changesRecent changes Who witnessed the signing of the will?Who witnessed the signing of the will? Who were the previous beneficiaries?Who were the previous beneficiaries? Has there been a recent change in the victim’s Has there been a recent change in the victim’s

relationship with the previous beneficiaries? Why?relationship with the previous beneficiaries? Why?


Did victim Did victim Do planning for preserving assets?Do planning for preserving assets? Articulate goals for handling of assets in the future?Articulate goals for handling of assets in the future? Set up joint bank accounts, trusts, rep. payee Set up joint bank accounts, trusts, rep. payee

arrangementsarrangements Establish a durable power of attorneyEstablish a durable power of attorney

How does this event fit into previous goals and How does this event fit into previous goals and steps to preserve assets?steps to preserve assets?

Role of the VictimRole of the Victim

Some cases are provable because the Some cases are provable because the victim is able to testify and provide victim is able to testify and provide informationinformation

Others are provable because the victim is Others are provable because the victim is unable to testify and is legally incompetentunable to testify and is legally incompetent

This issue should always be considered This issue should always be considered when developing the casewhen developing the case

Always look or corroboration!Always look or corroboration!

Role of the VictimRole of the Victim

Always interview if aliveAlways interview if alive Value of videotapingValue of videotaping Consider if it should be done alone, by law Consider if it should be done alone, by law

enforcement, or jointlyenforcement, or jointly Demonstrate victim's competence and Demonstrate victim's competence and

establish if statement legally trustworthyestablish if statement legally trustworthy Generally avoid leading questionsGenerally avoid leading questions

Sources of EvidenceSources of Evidence Public recordsPublic records

Assessor’s office (some tax records)Assessor’s office (some tax records) Secretary of state’s office (corporate Secretary of state’s office (corporate

documents, notary listings)documents, notary listings) Court clerk’s office – court records, marriage Court clerk’s office – court records, marriage

licenses, court orders, pleadingslicenses, court orders, pleadings Business licenses Business licenses Recorder’s office (property ownership, liens)Recorder’s office (property ownership, liens)

The Historical The Historical PerspectivePerspective Reports of prior calls Reports of prior calls

Law enforcementLaw enforcement APS and Aging ServicesAPS and Aging Services

Medical reportsMedical reports Current and previous visitsCurrent and previous visits Health conditions, medicationsHealth conditions, medications Mental health observationsMental health observations Don’t forget paramedics, dentists, geriatricians, Don’t forget paramedics, dentists, geriatricians,

mental health providersmental health providers

Prior Cases or IncidentsPrior Cases or Incidents

Suspect’s prior employersSuspect’s prior employers Court FilesCourt Files

Prior lawsuits and applications for court Prior lawsuits and applications for court orders for this and other victimsorders for this and other victims

Convictions and court sentencing orders and Convictions and court sentencing orders and conditionsconditions

Bankruptcy filingsBankruptcy filings

Sources of EvidenceSources of Evidence

Bank RecordsBank Records Bank can provide if a potential or actual victimBank can provide if a potential or actual victim

NSF checksNSF checks

A bank can refuse to pay a check or other order for A bank can refuse to pay a check or other order for withdrawal of money withdrawal of money if it believes or receives an affidavit stating that the person if it believes or receives an affidavit stating that the person

drawing, endorsing or presenting the instrument drawing, endorsing or presenting the instrument is or was at the time of the signing mentally or physically is or was at the time of the signing mentally or physically

disabled as to raise doubt that the person is competent to disabled as to raise doubt that the person is competent to transact businesstransact business

California Commercial Code 4405(4)California Commercial Code 4405(4)

Other SourcesOther Sources

Financial institutions, credit agencies, Financial institutions, credit agencies, brokeragesbrokerages Victim and suspectVictim and suspect

Notify Franchise Tax Board Notify Franchise Tax Board Parallel investigation for failure to pay taxes Parallel investigation for failure to pay taxes

owed from financial gainsowed from financial gains

Importance of Working Importance of Working With Law EnforcementWith Law Enforcement

Search warrantsSearch warrants Gain entryGain entry ArrestArrest Emergency Protective OrdersEmergency Protective Orders

Not available if only abuse is financialNot available if only abuse is financial

Provide protection for you and victimProvide protection for you and victim

Sources of EvidenceSources of Evidence On Line Data Bases – many require an On Line Data Bases – many require an

accountaccount GOOGLE is freeGOOGLE is free WESTLAWPRO—records across US on WESTLAWPRO—records across US on

business and corporate filings, UCC filings, business and corporate filings, UCC filings, liens and judgments, lawsuit records, asset liens and judgments, lawsuit records, asset locator, aircraft and watercraft records, and locator, aircraft and watercraft records, and stock locator recordsstock locator records

Obtaining ConsentObtaining Consent ConsentConsent

Who can give it? Is victim competent? What is Who can give it? Is victim competent? What is likely defense? Is case built on lack of likely defense? Is case built on lack of capacity?capacity?

Does victim have a guardian or attorney in Does victim have a guardian or attorney in fact who is not a suspect?fact who is not a suspect?

Can anyone else give consent?Can anyone else give consent? Suspect subject to warrantless search as Suspect subject to warrantless search as

condition of probation or parole? Who condition of probation or parole? Who authorized to conduct search?authorized to conduct search?

Crawford v. Crawford v. WashingtonWashington

Critical importance of witnesses to whom Critical importance of witnesses to whom victim and suspect have spokenvictim and suspect have spoken

Identify non governmental witnesses to Identify non governmental witnesses to statementsstatements

Document spontaneous statements and Document spontaneous statements and demeanordemeanor

Calls for help and medical careCalls for help and medical care

Your InvestigationYour Investigation Witnesses-- Circle around the victim Witnesses-- Circle around the victim Now and beforeNow and before

VictimVictim

Children

Neighbors

Doctor, Dentist

Clergy

Clubs

Friends

Lawyer

Hairdresser

Vet

Mail Carrier

CPA

Bank

The InvestigationThe 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 Statements and surrounding circumstances

such as spontaneous statements, such as spontaneous statements, admissionsadmissions

• Try to pinpoint exact datesTry to pinpoint exact dates

• Evidence ordered and collectedEvidence ordered and collected

The InvestigationThe Investigation

What is missing? Loss?What is missing? Loss? Inventory the estateInventory the estate

You or someone trusted by victimYou or someone trusted by victim See handoutSee handout

Collect all legal documents, POA, Collect all legal documents, POA, contracts, trusts, court orders and contracts, trusts, court orders and applications, civil suits, mental health applications, civil suits, mental health commitments, deeds, title documentscommitments, deeds, title documents

InvestigativeInvestigative StepsSteps Attempt to interview suspect Attempt to interview suspect

Their account of events and supporting Their account of events and supporting recordsrecords

Knowledge of abilities and needs of victimKnowledge of abilities and needs of victim Other sources of incomeOther sources of income All agreements and informal arrangements All agreements and informal arrangements

between victim and suspect regarding assets, between victim and suspect regarding assets, salary, gifts, and after deathsalary, gifts, and after death

Look for similar conduct with other victimsLook for similar conduct with other victims

Presenting the Case to Presenting the Case to the Criminal Justice the Criminal Justice SystemSystem

Use crimes and their elementsUse crimes and their elements Clear documentationClear documentation

CompleteComplete Descriptive and factualDescriptive and factual Easy to understandEasy to understand Supported with photos, medical evaluations, Supported with photos, medical evaluations,

witnesses, formal statements, etc.witnesses, formal statements, etc. Evidence legally obtained or obtainableEvidence legally obtained or obtainable

DocumentationDocumentation

Paint a picture of the Paint a picture of the

situationsituation

ThoroughThoroughDescriptiveDescriptive

Get away from “just Get away from “just

the facts”the facts”

Must relate relevant emotions and dynamics

““Paint a Picture”Paint a Picture”

Exact QuotationsExact Quotations Demeanor and EmotionsDemeanor and Emotions Complete DescriptionsComplete Descriptions The SettingThe Setting

Presenting the Case to Presenting the Case to the Criminal Justice the Criminal Justice SystemSystem

Spontaneous statements documentedSpontaneous statements documented Evidence understandableEvidence understandable Defenses addressedDefenses addressed Clear information on victim’s ability testifyClear information on victim’s ability testify Victim’s needs addressedVictim’s needs addressed Victim safety consideredVictim safety considered

Spontaneous Spontaneous StatementsStatements

Statements made without reflection Statements made without reflection

Stress of excitement from startling eventStress of excitement from startling event

Evidence Code 1240Evidence Code 1240

Person who heard statementPerson who heard statement

Legally incompetent person’s statements Legally incompetent person’s statements

may be admissiblemay be admissible

Describe DemeanorDescribe Demeanor

Document Document

Physical and emotional condition Physical and emotional condition

Behavior and appearanceBehavior and appearance

Exact statements Exact statements

Is This A Spontaneous Statement?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?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 DefensesAnticipating Defenses

Duty to discover, investigate, and Duty to discover, investigate, and disclosedisclose Exculpatory evidenceExculpatory evidence

Questions to elicit about possible Questions to elicit about possible defensesdefenses What will (other party) tell me about this?What will (other party) tell me about this? What have others been told about this?What have others been told about this? What do other witnesses believe has What do other witnesses believe has

happened? Why do they believe that?happened? Why do they believe that?


LoanLoan Capacity of lender; amount; period of loan; terms of Capacity of lender; amount; period of loan; terms of

repayment; how often were loans made; written or repayment; how often were loans made; written or other proof of a loan; consideration; any repayment other proof of a loan; consideration; any repayment mademade

GiftGift Capacity of donor; value of the gift; relationship Capacity of donor; value of the gift; relationship

between donor and donee; evidence of donor’s between donor and donee; evidence of donor’s intent to make a gift; value of gift; why was gift made intent to make a gift; value of gift; why was gift made (any promises or other inducements?)(any promises or other inducements?)


Services ProvidedServices Provided Capacity of victim; what were the services; were Capacity of victim; what were the services; were

they needed; how often were services provided; they needed; how often were services provided; how well performed; were supplies provided; value how well performed; were supplies provided; value of services vs. amount paid for themof services vs. amount paid for them

PermissionPermission Capacity of the elder; evidence of actual permission; Capacity of the elder; evidence of actual permission;

promises or other inducements; who benefited; how promises or other inducements; who benefited; how often was permission used; value of items obtained; often was permission used; value of items obtained; did elder understand what permission was used to did elder understand what permission was used to dodo


““Quid Pro Quo”Quid Pro Quo” Capacity of the elder; was the marriage reasonable Capacity of the elder; was the marriage reasonable

given the relationship between the parties; was the given the relationship between the parties; was the suspect legally able to marry; mutual consideration; suspect legally able to marry; mutual consideration; any suspect misrepresentations any suspect misrepresentations

FavorFavor Capacity of the elder; who benefits from the favor; Capacity of the elder; who benefits from the favor;

what did elder receive in return; is the benefit what did elder receive in return; is the benefit reasonable; how does it fit prior financial planning reasonable; how does it fit prior financial planning and actions of the elder; elder’s relationship to the and actions of the elder; elder’s relationship to the business or personbusiness or person


Lack of KnowledgeLack of Knowledge (“But I do not know her PIN”); what is the (“But I do not know her PIN”); what is the

contrary evidence; access to information; contrary evidence; access to information; other acts for same goal (e.g., forged her other acts for same goal (e.g., forged her signature in case of misuse of ATM)signature in case of misuse of ATM)

See: T.H. Baron (1999) “Financial See: T.H. Baron (1999) “Financial Exploitation of Infirm Adults: A Exploitation of Infirm Adults: A Prosecutor’s Perspective” Prosecutor’s Perspective” Victimization of Victimization of the Elderly and Disabledthe Elderly and Disabled

Thank You!Thank You!

Questions?Questions?

Thank you!Thank you!Candace Heisler Candace Heisler

[email protected]@AOL.com

building a financial abuse case for the criminal justice system candace j. heisler [email protected]...

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