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September 24, 2012

By: Joel Cohen

The magistrate, (here meaning the lower court judge – federal, state and local), forms in important respects the backbone of our judicial system. And a big part of their criminal jurisdiction implicates ex parte applications by police and prosecutors – for arrest warrants, search warrants and related matters. The often one-sided presentations made to them require a level of scrutiny broader than in instances where both sides get to air their opposing arguments to the judge called upon to issue an order.

This article addresses two scandalous, albeit isolated, past abuses in the ex parte process. This, as a reminder of the importance of arms length litigating when a magistrate is being asked to issue an order that “the other side” won’t know about -- maybe until its simply too late.

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