I should add that many courts are not troubled
by the introduction of expert testimony about
brainwashing, and the judges in those cases
understand that the legal issue involved is not
about the concept of brainwashing per se, but
rather is about whether tactics of extreme social
influence have overridden the plaintiff’s
autonomy of mind. In other words, these judges
see past the label, unlike other judges who are
more often interested in simplifying the cases
over which they will preside (United States v.
Fishman, 1990).
Nevertheless, the legitimacy of an expert’s
testimony on extreme-influence tactics should
not depend on the whim of an individual judge.
It makes no sense to say that Dr. X can testify in
Florida, for example, but that he cannot give the
exact same testimony in Illinois. Citizens in
every American jurisdiction should be entitled to
equal protection of the law and should be given
an equal opportunity to present their cases in full
scientific detail.
A Solution: Undue Influence As a Defense
Stepping back from these objections, can anyone
seriously doubt that innocent people fall prey to
clever hucksters who enslave or cloud their
minds in order to command their behavior and
acquire their obedience and assets? These
victims need relief and, in my view, deserve it.
But courts have not acknowledged any viable
legal theory that would provide a remedy in
these cases. I was troubled by this fact, as was
Paul Martin. It became necessary to find the
right way to do the right thing to protect human
dignity.
It was at that point that I remembered Florence
Roisman. Ms. Roisman was a lawyer in
Washington, DC in the 1960s who represented
tenants living in squalid apartment buildings
owned by wealthy slumlords. In case after case,
she successfully appealed to the hearts of the
judges, but not to their minds. Their message to
her was that she was presenting a case of
property law, and it is clear that the owners of
property have all the legal rights. Her clients had
none. One day, however, everything changed.
Florence entered the courtroom and said in
essence that “I am not here arguing the law of
property. I am arguing under the law of
contracts. My clients have a right to habitable
dwellings otherwise, the rent contracts they
signed are illusory.” The judges similarly
answered, “Oh, you are arguing contract law.
That is an entirely different thing.”
Notice that the facts of the squalor in which Ms.
Roisman’s clients were living did not change—
only the legal theory she argued for redress.
Roisman won her case, and within a decade
every state in the country required landlords to
supply tenants with decent sanitary dwellings
because every contract for housing carried with
it a judicially created, implied warranty of
habitability.
With this success story in mind, I began
encouraging a shift away from brainwashing to
the concept of undue influence or, in these cases,
what we may call extreme influence. For more
than 500 years, undue influence has been a
legitimate legal concept utilized to provide a
remedy for people who have become victims of
con men and women. With this shift, the
problem of judges not taking brainwashing
claims seriously seemed solved.
Undue-Influence Obstacles
Not surprisingly, however, the shift to an undue-
influence legal theory has encountered a few
wrinkles that still need to be ironed out. I will
first identify these new challenges before
suggesting innovative solutions.
The Unfamiliarity Problem
Paradoxically, although the legal system for
several centuries has recognized the validity of
undue-influence challenges, most judges have
never seen the issue addressed in their
courtrooms. According to Professor Madoff
(1997),
Every year over $100 billion passes
hands at death in the United States. In
conjunction with lack of mental
capacity, undue influence is the most
frequent ground for invalidating a
will…. And yet, despite its prominence,
little scholarly work has been done
examining the parameters and
justification of the undue influence
doctrine. (p. 572)
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According to legal scholars, the creation of
undue-influence law was a direct response to the
growing concern that “the church was taking
advantage of...the [deathbed] fears of the faithful
for its own aggrandizement” (Sherman, 2008, p.
581). As noted in an ancient English case,
“[T]here are no instances where men are so
easily imposed upon as at the time of their
dying, under pretense of charity....” (Attorney-
General v. Bains, 1708, p. 272) Thus, the law of
undue influence was developed as a means of
protecting private wealth from overzealous and
predatory religious clerics. As the centuries
passed, undue-influence cases expanded beyond
religion to include situations in which financial
interactions raised the possibility that the
transfer of assets at the time of death might not
have been the product of a free and voluntary
choice.
These testamentary will and financial cases
involved assets, not ideas, and not identity.
However, today we see the subtle and seductive
techniques of influence and control deployed to
change ideas, to implant beliefs, and to alter the
identity of the person influenced, all to serve the
best interests of a cunning and manipulative
influencer.
When we move from the physical realm
involving the exchange of money to the mental
realm of the creation, alteration, and insertion of
belief systems, and even identity, other problems
give judges serious concerns. Naturally, these
more modern cases are even less familiar to
judges, and thereby create other obstacles for
testifying experts.
The Clarity Problem
Two prominent legal scholars, Jesse Dukeminier
and Stanley M. Johanson (1995), have correctly
pointed out that “Undue influence is one of the
most bothersome concepts in all of law. It
cannot be precisely defined” (p. 160).
This definitional issue is neither unusual nor
fatal. Many concepts in law, such as due process
of law, can be understood only after
considerable interpretation based on analysis of
varying fact patterns brought before the courts.
Indeed, the concept of reasonable doubt, which
is an important part of every criminal trial, is no
clearer, and many states forbid judges to even
attempt to define it for juries because the
definitions themselves are too confusing. As the
Missouri Supreme Court said in State v.
Robinson (1893), “It is difficult to explain
simple terms like ‘reasonable doubt’ so as to
make them plainer.... Every attempt to explain
them renders an explanation of the explanation
necessary” (p. 1069).
The California Supreme Court (Rice v. Clark,
2002) has defined undue influence as “pressure
brought to bear directly on the testamentary act,
sufficient to overcome the testator’s free will,
amounting in effect to coercion destroying the
testator’s free agency” (p. 528). This statement
provides little guidance for when the undue-
influence doctrine will be applied. But one fact
gives us a clue.
If the influencer is determined and clever
enough, and the techniques utilized are
sophisticated and powerful enough, experts
believe that few people will be able to resist
becoming victims of undue influence (Quinn,
2010, p. 93). A California appellate court 80
years earlier, in a will-contest case, is in
agreement (In re Olson’s Estate, 1912):
Soundness of mind and body does not
imply immunity from undue influence.
It may require greater ingenuity to
unduly influence a person of sound
mind and body, and more evidence may
be required to show that such a person
was overcome than in the case of one
weak of body and mind. But history and
experience teach that minds of strong
men and women have often been
overborne, and they have been by a
master mind persuaded to consent to
what in their sober and normal
moments, and free from undue
influence, they would not have done.
(p. 386)
I take these independent comments to mean that
everyone, almost, under certain circumstances,
is potentially vulnerable and that suggests to me
that the undue-influence doctrine should not be
limited to cases involving wills, nor to cases
involving other financial misdeeds. In other
words, the shift by influencers from targeting
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