Author Archives: Lisa Cooper

A Short Note On Writ Of Habeas Corpus

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Writ of Habeas Corpus definition

                             Definition of Habeas Corpus

David and Rita had been living in separate houses from the moment they decided that both had higher priorities than keeping their marriage alive. Both were successful in their respective fields – Rita a highly placed surgeon, and David the regional manager of a multi national company. Unfortunately both had forgotten that they had a 7 year old son to take care of, and he became the victim in their latest tug of war. It all began when Rita decided it was best for her son to grow in the loving care of her parents, far from the “poisonous” atmosphere surrounding his father, as she put it. When David came to know about this, he had to file a writ of Habeas Corpus in court, to ask his wife to produce their son.

Writ of Habeas Corpus definition

The above example will go a long way in helping you understand the definition of the term ‘writ of Habeas Corpus’. There are plenty of writ of Habeas Corpus definitions available, but most are likely to lead you to further confusions.

The writ is directed by a judge at a person or persons, who is prima facie at fault for detaining another person, demanding the presence of the detained person at a specified time to a specified place for a specified purpose. Although, this writ is mainly seen as a method to release a person who has been kept captive unlawfully, it can be also used in cases such as the one involving David and Rita mentioned above. In their case, Rita’s actions were not certainly against the law, as keeping a child at his grandparents is not at all against the law. But, as his father, David can file the Habeas Corpus writ, demanding him to be presented.

Habeas Corpus Act

                 Habeas Corpus writ defined

Origins of the Habeas Corpus

The origins of writ of Habeas Corpus definition are rather vague, but there is evidence of it being used as early as in 14th century England. It was formalized as an act in 1679, when the Habeas Corpus Act was formed. It was later brought to America by the British Colonialists, and has been used here since.

The writ of Habeas Corpus is one of the strongest tools that can be used against unlawful captivity. These are the types of laws that uphold the personal liberty of any individual.

Legal Aspects Of The Writ Of Habeas Corpus

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Writ of habeas corpus definition

Definition of writ of habeas corpus

The Writ of habeas corpus is a civil proceeding that traces its origins back to Fourteenth century England. It is available in both the State and Federal Courts and is a legal instrument introduced to question the legality of any imprisonment. Despite being available in both the State and Federal courts, there are numerous rules surrounding the circumstances when and where this writ can brought to court.

This writ is brought before a Supreme Court Judge in New York state courts and can be used for a variety of reasons such as to request a reduction in bail, to challenge one’s detention, to remedy one’s treatment while imprisoned and the like. Any individual under the state’s custody can seek this remedy.

The writ of habeas corpus definition has been subjected to a great deal of legislation and litigation in the Federal courts. The statutes detailing the circumstances and the reasons for bringing this writ to court are complex, especially with respect to when it can be brought. The Anti terrorism and Effective Death Penalty Act that was passed in the year 1996 brought with it various limitations regarding when this writs can be brought in a federal court.

According to the Title 28 U.S.C. § 2244(d)(1), application for the writ of habeas corpus by an individual in custody is subject to a 1 year limitation in accordance with the judgment of a State court. The writ of habeas corpus definition specifies that this period of limitation starts either from the date on which the judgment was made final by conclusion of the direct review or the expiry date of the period for seeking such a review, whichever comes first.

Legal instrument

When can the writ of habeas corpus                            be used?

The term ‘when the judgment is final’ is interpreted according to the State jurisdiction and the appeals process followed. In the instance where you or your client is imprisoned unreasonably, consult an experienced attorney right away, as there are important restrictions on the statutes for challenging the legality of an imprisonment.

That was some information about the writ of habeas corpus and its legal aspects. This legal principle is an important part of the criminal justice system to check the illegal imprisonment of innocents. For more information about this writ, check out online legal resources. Students of law are encouraged to go through previous cases where this writ was brought to court to get a better understanding of this legal proceeding.

Limitations On Filing A Case

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Wrongful death statute of limitations

Limitations on filing cases

George’s fourteen year-old met with an accident last fall and suffered serious injuries. The medical bills ran into the thousands and George, who was a carpenter, was running from pillar to post to find the cash. Young Michael fought against the odds for four years but unfortunately, finally succumbed to his injuries.

The aggrieved father then filed a case of negligence against the driver of the vehicle. However, the case could not proceed as the time for filing the suit had exceeded the wrongful death statute of limitations of the state. However unfortunate this may seem, it is the law and there are good reasons for having such limitations in place.

The Need

Courts decide cases based on evidences brought before it. This may seem heartless, especially after having heard George’s story but the fact is that courts cannot afford to be seen to judge cases based on the emotional state of affairs of the litigant. History has shown that as time passes, some evidence may deteriorate, or could be fudged to distort the truth. As such, the court cannot term such evidences as “reliable” and judgments based on the same would result in serious miscarriage of justice.

There is another aspect to these laws as well. Courts have to ensure that justice is done to all parties and the accused too has to be looked upon as a human being. In this case, there have been many arguments that frivolous litigations could be filed against persons with botched evidences. Moreover, the accused may have reformed or have suffered enough guilt that to punish him further would not be fair.

Personal injury

Filing for wrongful death

The state of Georgia has quite a few limitations depending on the case in focus. For example, if it is a case that has something to do with personal injury and wrongful death statute of limitations, the state declares a period of two years. Property damage on the other hand has a period of four years. A special case is considered for minors who have been involved in car accidents. For them, the statute of limitations provides a term until they attain the age of 18 years.

This period changes with state. There is a statute for limiting the period within which one ought to file a case for almost every case too. To know more, it would be best to consult a practicing lawyer who deals with these cases.

A Short Note On Habeas Corpus

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Writ of habeas corpus definition

Writ of habeas corpus definition given

Anybody who has seen court room movies or even read court room novels is likely to have come across the term ‘habeas corpus’. And a lot of you would be wondering what the term means. Habeas corpus is a Latin word and it means “you shall produce the body”. The writ of habeas corpus definition is simpler once you know the origin of the phrase. This writ is one of the most important aspects of criminal law, as it is directly linked to the protection of a person from wrongful detention or imprisonment.

Writ of habeas corpus definition

The definition of habeas corpus, and the writ of habeas corpus have been mentioned briefly above. Here is some more information which will help you with understanding the subject a bit more deeply. A habeas corpus  writ is one of the best tools a person can use to fight against wrongful detention or imprisonment. The petition for such a writ can be filed in a court of law by the person who is kept under illegal detention, or by another person, acting on behalf of the person under imprisonment.

The writ of habeas corpus, once obtained, can be produced by the person before  a prison official, jailer or custodian, to bring the person under custody to a court. The court will then determine whether the person is being kept under illegal imprisonment or not. The writ should mention that an error was made in keeping the person under imprisonment. It ranks high among the basic individual rights in the country. The Supreme Court has taken several measures to ensure that the writ of habeas corpus is not abused by prisoners.

wrongful detention

        habeas corpus explained

Functions of habeas corpus

The beginning of the writ of habeas corpus can be traced back to the English common law. During those times in England, the monarchs had the right to know why any of the people under his or her protection were being detained or imprisoned. The English common laws had provisions for enabling the monarchs to the writ of habeas corpus. In the United States, once it became a constitutional republic, the people of the state replaced the monarchs, granting every individual the right to habeas corpus.

Unlawful punishment by the authorities responsible for upholding the constitutional rights of the individual in question, can only be tackeld effectively with the help of writ of habeas corpus.

Some Info About IRS Audits

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IRS Audit statute of limitations

                                   IRS tax audits

The Internal Revenue Service (IRS) can request an audit anytime during a period of three years from the date of taxpayer’s return. The IRS can demand the tax records for the last six years if considerable tax mistakes are found.

Identification

The taxpayers that IRS will audit are selected using a software program making use of parameters that will identify the high-risk taxpayers who have a probability of underpaying their taxes. This software will determine which citizens pay their taxes properly and who do not.

IRS audit location

The IRS can perform the audits either through mail or in person. If mailing the receipts and tax records are an arduous task, then tax payers can request the IRS to conduct an in person audit. In person audits may be performed either at your office or at your personal residence. Generally, this is done in your office where the tax records are maintained. In case the IRS requires additional information such as proof of income or receipt of payment of expenses, taxpayers will be notified of it well in advance.

IRS audit statute of limitations:

As per IRS recommendations, taxpayers are advised to maintain personal tax information and records for six years, starting from the date on which it was filed. Additionally, business tax returns should be retained for the period of transaction plus another three years. Usually, after a tax return is filed, the IRS attempts to schedule an audit at the earliest possible date. The IRS statute of limitations for collecting tax liabilities is ten-year duration from the date on which it was filed. Prior to implementing the new regulations, the IRS requested extensions from taxpayers to extend this period of limitations. These extensions can no longer be used for tolling purposes.

Prevention

Internal Revenue Service

                  Statute of limitations for IRS audits

Individuals can deny the IRS’ request to extend the IRS audit statute of limitations, but in such a case, the IRS will prepare the final audit determinations based on incomplete tax information.

These are some aspects regarding the IRS tax audits and their statute of limitations. Tax laws undergo a constant change and so it would be best to consult your accountant and talk to an experienced attorney or a competent tax professional to assist you through the audits. You can also go through online legal resources to know the present laws.

Dental Malpractice Laws In Pennsylvania

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Wrongful death statute of limitations

     Filing a wrongful death lawsuit

A patient in Pennsylvania can file a lawsuit against his dentist for dental malpractices such as improper performance or an error in diagnosis. However, it should be kept in mind the lawsuit will be dismissed and the injured party deprived of any compensation if he/she does not file a medical malpractice lawsuit within the prescribed statute of limitations period after discovering the injury. The Medical Care Availability and Reduction of Error Act govern the statute of limitations period for medical malpractice in the state of Pennsylvania.

Dental malpractices

Actions that can count as dental malpractice are numerous and can include a diagnostic error or improper performance. Some of the actions that can come under diagnostic errors include failure to recognize complications post some procedure like an infection, failure to diagnose a particular condition or improper diagnosis of a tooth or gum disorder as periodontal disease, gingivitis or cancer of the mouth.

All kinds of inadequate workmanship comes under improper performance and includes actions such as extracting the wrong tooth, poorly executed crowns or fillings, performing a wrong procedure or failure to perform a procedure the dentist said he would perform, leaving foreign materials in a patient and failure to acquire an informed consent from the patient before performing a procedure.

Statute of limitations in Pennsylvania

The statute of limitations for an injury due to medical malpractice or wrongful death statute of limitations is two years in Pennsylvania. According to the discovery rule in Pennsylvania, the period for statute of limitations does not start until it is reasonably possible to discover the injury. However, this rule is not applicable in the case of wrongful death statute of limitations. In addition, in the case of injury to a minor, the statute of limitations period does not start until he/she becomes 18.

MCARE Act Effect on Discovery rule:

Dental malpractices

Statute of limitations for filing a dental malpractice suit

The discovery period is restricted by a seven-year statute of repose starting from the date when the injury was caused for cases that arise after the effective date of the MCARE Act. With the exception of foreign objects that are left in the body unintentionally, all other malpractices should be discovered within a maximum of seven years. Minors are given a grace period of reaching 20 years of age to file a lawsuit.

These are some aspects of the actions that can be considered as dental malpractices, the period of discovery and statute of limitations for filing a lawsuit against such injuries. Seek the assistance of an experienced attorney to help you through the procedure.

All About IRS Audit Regulations

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IRS Audit statute of limitations

            What is the IRS audit statue of limitations

Citizens who are considered as a high risk for underpaying their respective taxes are monitored using a computer software program by the IRS or the Internal Revenue System. This software can tell who is paying their tax properly and who is not. Read on to find out more about the IRS audit regulations.

Audit selection:

Filing an amended return merely will not start an audit investigation. However, filing this will subject these returns to an initial audit screening process and the amended returns may be selected for IRS audit. The IRS employs the ‘National Research Program’ to filter all tax payer returns initially and the returns are then selected. Based upon the IRS’s specific criteria to decide which returns may result in adjustment upon an audit, this program selects returns for audit using a baseline return.

The computer selected taxpayer’s returns are initially assessed by an IRS auditor. It is up to the auditor to decide if the return can be accepted as it is or if it has to be investigated further by audit examiners. A final decision regarding whether the return can be passed on for acceptance or if it requires a follow-up is in the hands of the audit examiner.

IRS audit location:

Audits can be performed in person anywhere that you keep your tax records from your place of business, a local office or even your place of residence or it can even be conducted by mail. The IRS will inform you in case it requires any additional tax information such as a receipt evidencing payment of expenses or proof of income. If the audit is conducted in your office, then it will occur where you maintain your accounting books.

Record Retention requirements:

As a general rule, the tax records should be maintained during the entire period of the business transaction with the addition of another extra three years. As per IRC recommendations, taxpayers are required to maintain payroll records for a minimum of six years at least. During an audit, IRS has the authority to evaluate tax returns for the previous three years. However, if substantial mistakes are found, the IRS can extend this review period. But in no case will it include tax returns more than six tax years old.

IRS audit statute of limitations:

IRS auditor

                          Conducting an IRS audit

The IRS audit rules also include provisions for statute of limitations. The IRS may request the tax payers to allow extra time for the purpose of statute of limitations. The IRS also conforms to refund deadlines. If you have reasons to believe that the statute of limitations applicable has been surpassed in favor of IRS, then your accountant or tax attorney should thoroughly review the ‘Publication 1035, Extending the Tax Assessment Period.’

That was some information regarding IRS audit selection, location and the IRS audit statute of limitations. For more information on this topic, consult your accountant or your tax attorney.

Understanding The Writ Of Habeas Corpus

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Writ of habeas corpus definition

                    Illegal detention of a prisoner

The history of the habeas corpus writ dates back to the thirteenth or fourteenth century when it was first used in the common law courts of England. These courts, consisting of legal professionals were rivals of the feudal courts that were under the control of local land owners. The feudal courts were in dire need of procedural consistency and on this account, the common law courts started issuing writs demanding the release of prisoners that they had imprisoned. The common law courts utilized the writ to demand the release of people imprisoned by the royal courts like the Admiralty and Chancery during the late fifteenth to the seventeenth century.

The modern habeas corpus writ is designed as a response against as illegal and unjust imprisonment by the criminal justice system. According to the writ of habeas corpus definition, this legal instrument usually requires a person, generally the prison warden to produce the prisoner and justify with reasonable and solid evidence. The court may order the prisoner’s release if he can successfully argue that his detention was in violation of his constitutional right. This writ can also be used to release an insane person or a person who has an infectious disease or is a drug addict. It can also be used for gaining child custody.

The habeas corpus writ is an extraordinary legal principle as it endows a court with the power to release a prisoner who had undergone trial in the criminal justice system and all its appeals and procedural safeguards. According to the Writ of habeas corpus definition, initially, it is up to the petitioning prisoner to prove that his/her detention is in violation of the constitutional rights. But if he can come up with sufficient solid evidence, then the focus shifts to the warden who will be required to justify his/her imprisonment.

Courts authorize the writ

                 Violation of the Constitutional right

Federal courts as well as all state courts authorize the writ of habeas corpus. To request for the writ, an individual who is held prisoner in a state or federal prison files a petition with the court that sentenced him or her. Federal court and majority of state courts allow the inmates to present a short oral argument during a hearing in court. To establish evidence for the petition, he/she may be permitted an evidentiary hearing.

As you now know, this law guarantees that no citizen is detained illegally. Refer online legal resources for further info about this writ.

Looking Into The Nuances Of Statute Of Limitations

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Wrongful death statute of limitations

           Filing wrongful death claims

Many might wonder why should there be a wrongful death statute of limitations. Isn’t it right that a person who has been a victim of negligence should be given appropriate justice even if a case is filed five years after the incident? Another question would be, does a person’s responsibility for causing the death of a person reduce after a period of time for the court to ignore it? Moreover, isn’t the next of kin of the victim or his direct dependants being made a victim without compensating them and leaving them to the rather sad excuse of “fate”? We shall try to answer these questions as fairly as possible.

One thing that one should consider before listening to arguments as to why there should be a wrongful death statute of limitations is that law is very complicated. It has to take into account many factors before arriving at a decision. These could at times seem cruel and painful but it is necessary for the justice to take the right decision and to reduce the number of failings. The only way to reduce these failings is to have such type of laws, the essence of which will be explained in the coming sections.

Evidence

To prove wrongful death, one has to provide evidence in court. The only persons who would usually bring these cases forward would be the next of kin of the deceased. Now, quite obviously, these evidences, if not brought within a set period of time cannot be considered as credible. The reasoning is that the evidences could be fabricated, would have deteriorated to such extent that one would have to then consider it as “circumstantial” evidence which is a rather poor foundation on which to base a judgment. Hence, claimants should file a case within the period set by the statute.

Claims

The statute of limitations

            Statute that governs claims

Now, if a claim were to be given by the court, the calculations involved to determine the compensation award is not simple. To calculate this, one would have to consider the earnings of the deceased if he was alive in accordance with the economic scenario then and other parameters. If a person is to win a case, say beyond the statute of limitations, the court would have to factor in changing economic scenario which could be punishing the defendant or compensating the victim’s kin inappropriately.

Different states have different laws governing the statute of limitations. Students of law should know nuances like these very well before and during the course of serving as an advocate.

Latest Procedural Rules For Habeas Corpus Petitions

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Writ of Habeas Corpus definition

                         Prevent illegal detention

Derived from a Latin word, the term Habeas Corpus means ‘have the body.’ Having originated in England, this writ or legal action is designed to save an individual from illegal detention. According to writ of habeas corpus definition, this writ protects an individual against any harm that may be caused as a result of unfair decisions by the legal system. A major purpose of introducing this legal action is to check unlawful and unjust detention orders which the legal authorities may issue, thereby following the “Innocent until proven guilty” principle. The Court may release an accused if it thinks that he had been detained without any reasonable legal justification.

The new procedural laws for Habeas Corpus petitions are intended on speeding up the Supreme Court’s consideration of the Exhaustions petition. This should be done without unfairly limiting petitioners from raising new justifiable claims.

A brief description of the new procedural rules

  1. An individual sentenced to death can still petition a Habeas Corpus petition. The initial petition has no limitation regarding its length. All later petitions have a limit of up to 50 pages, or if drafted on a computer, a limit of 14,000 words, subject to a good cause exception.
  2. Accompanying the petition should be a table or chart, which should clearly and frankly specify all the following information. This will not be counted in the 50 page limit and should not be more than 10 pages long. The information to be disclosed include:
  • The claims that have been previously raised and rejected, and where (either on the Habeas Corpus, or on appeal along with citations).
  • The claims that could have been raised previously, and also the reason why they weren’t.
  • The claims that have not been presented before the Supreme Court already.
  • The claims that have been considered as unexhausted by the federal court, and which are now raised for the purpose of exhaustion, supported with copies of federal court orders.

    Procedural rules

                           Writ of Habeas corpus

3. A petitioner can choose to submit some or all of the claims that have been considered unexhausted by the federal court, in a table or a chart, for the Supreme Court’s consideration. This presentation can include a brief description of the issue, and also the reasons that state why the procedural bars are not applicable.

These are the new procedural rules that have been included as part of the writ of Habeas Corpus definition. For more information about the procedures, consult an experienced lawyer.