Understanding The Writ Of Habeas Corpus

Posted on February 22, 2013 by Lisa Cooper

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.

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.

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Looking Into The Nuances Of Statute Of Limitations

Posted on February 19, 2013 by Lisa Cooper

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

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.

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Latest Procedural Rules For Habeas Corpus Petitions

Posted on February 15, 2013 by Lisa Cooper

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

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.
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.
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.

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Heavy Penalties For Tax Evasion Charges

Posted on February 15, 2013 by Lisa Cooper

IRS audit statute of limitations, additional tax

Statute of limitations for unreported income

Forgot to add an extra income on your tax return? You may not be asked to pay up by the IRS immediately, but do not be surprised to see a mail from them intimating about penalties some eight or nine years later.

It is very important to add every income to your tax return as otherwise it might result in tax evasion charges from the IRS.

IRS audit statute of limitations

It is the time period allotted to the IRS within which the agency has to resolve any problems with a tax account. After this time period, the tax payer with whose account the agency has found discrepancies will not be liable to face any charges from the agency. Some exceptions do exist, such as, if the amount involved were to be higher than a certain amount, then the IRS can take a longer time period than the stipulated IRS audit statute of limitations.

Otherwise, the usual time period allotted for the IRS to come up with sufficient evidences to show that the person has been evading taxes is 10 years for collection and three years for assessment. It means that the IRS has got 3 years to assess the additional tax from the date of filing the tax return and 10 years to collect the tax owed by the person from the date of assessment.

Exceptions to the statute of limitations

As mentioned earlier in this article, this statute of limitations is also subjected to some exceptions, as different situations demand different set of rules. If the person accused of evading taxes is responsible for an understatement of more than 25 percent of the gross income given on the tax return, then the IRS has got six years to assess the additional tax owed by that person from the time the return was filed.

IRS statute of limitations

Penalties and interest

Penalties and interest are calculated by the IRS if it finds discrepancies in the reported income. Unreported income will warrant the payment of penalties by the tax payer and the most common penalty awarded is one half of 1 percent for each month the tax is unpaid on the unreported income.

IRS might take some time, even years, in some cases to find out if there are any unreported incomes in the tax returns of a person. Therefore, even if you think you managed to escape from IRS, the relief might be short-lived.

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Notes On Wrongful Death Lawsuits In Utah

Posted on February 9, 2013 by Lisa Cooper

Wrongful death statute of limitations explained

Wrongful death lawsuits are filed in a court of law when a negligent or wrongful act of the defendant results in the death of a person. The victim’s family then has the right to file a case against a business or organization, a government agency or a person, if they feel that the actions of these groups of people, or of a person, led to the death of the victim. In Utah, the law states that the person has the right to file a case in the event of a wrongful death. If you intend to file a wrongful death lawsuit, there are certain parameters that are to be met, and the case should be filed within a short period of time, as the wrongful death statute of limitations only allows claims to be filed within a certain limited time period.

Filing a wrongful death claim

It should be noted that only the heirs of the deceased person, or any of his personal representatives are allowed to file a wrongful death claim in a court of law. If anyone heir of the deceased person files a wrongful death claim, that claim is considered as representative of all the other heirs.

Time period of filing the claim

As mentioned earlier, the wrongful death statute of limitations permits the filing of the wrongful death claim within a certain time period only. Generally, this time period is 2 years; however, exceptions are made if the heir of the deceased person has not yet reached the age of 18 years at the time of death, or if more information on the death of the person surfaces at a later date.

Employee protection

statute of limitations of wrongful death

The Workmen’s Compensation Act allows the heir of the deceased person, who has been an employee of a company, but was killed by the negligence on the part of a third party, the third party being a person who has no connection to the employer, to claim compensation. Attorney’s fees and other costs are deducted from the compensation received, and if the money is availed through a third-party claim, it must be awarded according to the laws in Utah.

It should be noted that filing wrongful death lawsuits within two years is a must if there are sufficient grounds to believe that the death occurred due to the negligence on the part of any other person. These laws guarantee that the negligent actions of a person are sufficiently punished.

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Statute Governing Wrongful Death Claims In Georgia

Posted on February 8, 2013 by Lisa Cooper

Limitations of wrongful death

Wrongful Death means the death caused due intentional, negligent or reckless act of another person or party. There is a provision for the relatives or family members of the decedent to file a wrongful death claim against the person responsible. In Georgia, the wrongful death claim can be filed by the spouse, children or parents, or even the administrator of the decedent’s estate. The wrongful death statute of limitations in effect in the state of Georgia, is discussed below.

Wrongful Death Claim in Georgia

In Georgia, once the wrongful death occurs, it is essential to consult an attorney before filing for a claim. The statute of limitations dictates the time within which you can file, and win a settlement.

Wrongful Death Statute of Limitations in Georgia

The statute of limitations in Georgia dictates that you must file the wrongful death claim within two years of the death of the decedent. If you fail to do so within this timeframe, you will become ineligible to avail the benefits which you could otherwise have gotten, including any settlements.
If the wrongful death of your loved one is caused due to the negligent or careless act of another person or party, it is important for you to contact a Peachtree City wrongful death attorney immediately. Those attorneys, familiar with the wrongful death law and Georgia’s statute of limitations, can certainly help you in availing the maximum benefits in the case of wrongful death action.
There are some incidences of extensions in the statute of limitations. For example, it mayheretofore have been believed that the wrongful death of your dear one was caused due to an accident three years ago, but now it is found that it was a murder. In this case, your statute of limitations starts on the very day the truth is discovered, and not from the date of the death.
Wrongful death statute
In some cases, the parameters outlined in the statute of limitations can be more confusing. For example, let’s consider a case of personal injury, where your dear one was injured in an accident while working in a poorly constructed department store. If he died several years later because of injuries sustained while at work, you cannot sue the department store if the original accident took place two years or more ago.

This is all about statute of limitations affecting wrongful death claims. For further information on the statute in Georgia, or on that effective in other states, refer to legal resources websites.

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Probate Rights Of The Heirs Of A Wrongful Death Victim

Posted on February 7, 2013 by Lisa Cooper

Uniform Probate Code

In the instance of a wrongful death, the interpretation of the wills and distribution of the deceased’s estates is done under the supervision of a probate court. Irrespective of whether the decedent died with a will or without, the probate oversees the distribution of the estates. Failure to understand the Uniform Probate Code and the extent to which your state has adopted this code and other state specific probate laws, can cause a delay in the distribution of assets and can also lead to the accumulation of additional fees.

Entitlements to estate:

The family members, and extended relatives of the deceased who have incurred losses as a result of the death, are entitled to receive damages. The court will appoint a personal representative if the will does not specify one. All heirs and relatives will be notified of the probate hearing by the court. Before commencing the entrusted duties, the personal representative is required to provide consent and an oath, and in some states, may also be required to retain a bond as security.

Civil and Criminal Prosecution:

The Uniform Probate Code states that probate courts are part of the civil law system, and they have the authority to deny compensation to a person(s) if they were responsible for the ‘felonious and intentional’ death of the victim. Civil action by the probate court could deem an individual guilty, even if the said individual(s) has been proven innocent in a criminal action. In order to obtain a civil determination, interested individuals must petition the probate court.

Limitations on creditors:

According to the Uniform Probate Code, the claims of surviving spouse and minor children over certain assets, have precedence over those of creditors. Creditors’ claims have a lower priority as

compared to homestead shares, and allowances for support of the spouse, or a minor child. Generally, creditors can pursue their claims following a fixed time period after public notice.

Probate rights of the surviving family

Wrongful death statute of limitations:

The statute of limitations for beginning wrongful death claims is different for different states, and in most cases, is usually around 2 to 3 years from the date of death. There can also be another additional limitation based on the amount of time that has passed after the occurrence of the incident first came to light. For instance, in Minnesota, the wrongful death statute of limitations for filing a lawsuit is within six years after the incident.

These are some aspects of the wrongful death probate rights of a decedent’s heir.

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Statute Of Limitations Lawsuit In New York

Posted on February 1, 2013 by Lisa Cooper

Wrongful death statute of limitations in New York

Family members can file for a wrongful death action lawsuit if they believe that the death of an immediate surviving family member was caused either intentionally or negligently. The lawsuit is filed within a specific period of time by the family members and this lawsuit is termed as wrongful death statute of limitations.

Period of time

The law specifies that the wrongful death action lawsuit must be filed no later than two years from the date of the decedent’s death, which means that the statute of limitation for a wrongful death claim is two years, in the State of New York.

Wrongful death statute of limitations

It must be noted that the statute of limitation is an affirmative defense, which means that the defendant must be able to assert the defense in his or her answer to the complaint of the plaintiff. In the first responsive pleading of the defendant, if the statute of limitation defense is not waived, then it will be deemed as waived by the court and the defendant will not be allowed to assert the defense after that.

Dismissing the case

New York wrongful death statute of limitations

A judge has the authority to dismiss the case filed by the plaintiff if the defendant can back up his claim that the plaintiff did not file a wrongful death action within the two-year statute of limitation. The two year limit thus can play a crucial role in many of the cases as, if the defendant is able to prove that the action for wrongful death filed by the plaintiff was not inside the two year time period after the death of the decedent. Then the case will hold no weight in the court and has every chance to be duly dismissed.

Certain exceptions

There are certain exceptions to the rules of the wrongful death action too, as there are in the case of most of the other legal rules. In the case of wrongful death action, the statute of limitation does not begin to accrue until a later date in the certain scenarios. An example for such an exception can occur in cases where the death-producing agent is not immediately discoverable, such as poisoned drugs administered to the patient in which it is likely that the plaintiff will become aware of the use of contaminated pharmaceuticals during the course of the treatment of the decedent.

These are some information regarding the wrongful death actions filed in the state of New York.

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Illinois Statute Of Limitations For Death

Posted on January 31, 2013 by Lisa Cooper

wrongful death statute of limitations

If a person is killed due to the wrongful action of another person or that the negligence of the defendant was directly responsible for the death of the victim, then the defendant is liable for the death governed by the wrongful death statute of limitations of the state in question. In the Illinois State, the governing limitation laws behind wrongful death claims have been in force from early 1860s that set forth the time limit within which such claims can be brought to court for suing.

Statute of Limitations in Illinois

While laws between states vary on the statutory period of limitation, any statute of limitation comprises a period within which the plaintiff can sue in the court of law for a lawful claim which is no different in cases involving wrongful deaths. It is for the law to oversee that no claim is allowed beyond the limitation period and such claims can be rejected either by the court or on motion by the defendant.

In Illinois State, the period of limitation for filing wrongful death claims as civil law suit is two years from the calendar date of the death of the victim or the accrual of death of the victim. The proceedings are normally initiated by the heirs or beneficiaries of the victim.

Illinois, exceptions to wrongful death statute of limitations

While law of limitation aims at deterring unlawful claims or claims arising after evidences is declared non-existent, the law is not devoid of exceptions either. The statute allows relaxation considering health situations, whereby allowing filing within two years from the date of discovery of injury which may not be same as the date of incidence of harm, the capping here in Illinois being four years from the date of injury. If the claimant is a minor, the relaxation goes up to 8 years for filing civil lawsuit for wrongful death which however cannot be beyond his 22^nd birthday for all instances and purposes.

Wrongful death statute of limitations in Illinois for wrongful death like any other state is based on the common law legal system. The scope of the law lies in allowing the civil dispute or criminal charge being executed in a timely manner but exceptions to the law enlarge the scope the law to accommodate lost opportunity which would otherwise be denied to someone in need of legal help and assistance.

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Wrongful Death Laws And Amount Of Damages In Kansas

Posted on January 29, 2013 by Lisa Cooper

Appointing a wrongful death lawyer

Having to lose someone in your life is really painful. The grief can haunt for years to come. The case will be much worse if the death was due to some kind of wrongful actions or someone else’s negligence. Besides losing your dear one, you might also have suffered other damages due to his or her loss. So who is to be responsible for this and is there any way that you can get some alleviation for the pain and damage you suffered from this? If this happens to be in Kansas, you may consider filing a wrongful death lawsuit. The wrongful death lawyer can help you get justice and recover damages quickly.

Usually the wrongful death lawsuits are filed by the deceased person’s spouse, child, parent or some other relative. In U.S. different states have separate laws for considering punitive damages. Each state’s statutes take into account several things while considering cases of wrongful death.

Kansas wrongful death statute of limitations

Medical negligence or mistakes
Road and airplane accidents
Criminal attacks
Dangerous working conditions and harmful exposure
Death under a supervised activity

Depending upon the pecuniary injury, the court will decide how much will be your amount of damages. Pecuniary injury means the loss the family or the plaintiff (who files the lawsuit) had suffered in terms of support, services, medical and funeral costs etc. If going for a wrongful death lawsuit, the case must be filed in court within two years of the date of death. If the time period exceeds 10 years, such a lawsuit won’t be considered in Kansas.

Amount of Damages for a wrongful death lawsuit

Wrongful death claims

As mentioned earlier, the amount of damages is dependent on pecuniary injuries suffered by the deceased person’s family. The maximum amount dispensed on account of damages cannot exceed $250,000. After considering the case in detail, the Kansas court will declare the final amount of damages. The jury will not be informed about the pecuniary damages limit. If the judgment exceeds the permissible limit, the plaintiff will be eligible to get the maximum amount of $250,000. Depending on the situation, damages can include interest from the date the family member died.

The courts of the state may proceed with other penalties if it deems that the act was too blatant and that the person had ignored all procedures set on stone to cause this unfortunate incident. Out of court settlements too have now become popular thereby avoiding the long legal procedures. But this has to be done before the Wrongful death statute of limitations expires as then, the accused may not have any reason to compensate the family.

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