§ Rule 605. Competency of judge as witness

Codes > Pennsylvania Statutes and Consolidated Statutes > Rules of > Article VI > Rule 605.

Rule 605. Competency of judge as witness

The judge presiding at a trial or other proceeding may not testify as a witness in that trial or proceeding.

Comment: This rule differs from F.R.E. 605. Pa.R.E. 605 departs from the first sentence of F.R.E. 605 to clarify the meaning of the rule. The second sentence of F.R.E. 605 which provides, “[n]o objection need be made in order to preserve the point,” has not been adopted.

Pa.R.E. 605 makes a judge absolutely incompetent to be a witness on any matter in any proceeding at which the judge presides. Cf., Municipal Publications, Inc. v. Court of Common Pleas, 507 Pa. 194, 489 A.2d (1985)(applying Canon 3C of the Pennsylvania Code of Judicial Conduct, and holding that at a hearing on a motion to recuse a judge, the judge himself could not testify on the issues raised in the motion and continue to preside at the hearing).

There is no Pennsylvania authority on the meaning of “testify as a witness.” However, based upon the legislative history of F.R.E. 605, a judge may be said to “testify” even if he has not been called to the witness stand. See 27 Wright & Gold, Federal Practice and Procedure § 6063 (1990) (citing United States v. Lillie, 953 F.2d 1188 (10th Cir. 1992) (judge in bench trial taking a view without knowledge or presence of counsel and parties)); Jones v. Beneficial Trust Life Ins. Co., 800 F.2d 1397 (5th Cir. 1986) (introduction at trial of judge's pretrial ruling); United States v. Pritchett, 699 F.2d 317 (6th Cir. 1983) (judge's comments from bench).

Pa.R.E. 605 does not include the final sentence of F.R.E. 605, which provides, in effect, an “automatic” objection to testimony by the presiding judge. The Federal Rule includes the “automatic” objection to free the opponent of the testimony from having to choose between waiving a challenge to the testimony by not objecting and risking offense to the judge by objecting. F.R.E. 605 advisory committee notes. This puts undue emphasis on the sensibilities of trial judges. Moreover, since courts have applied F.R.E. 605 to situations where the trial judge has not been called to the stand, the “automatic” objection precludes the only means of alerting the trial judge to the need for corrective action before it is too late. For these reasons, Pa.R.E. 605 takes the opposite approach--an objection must be made to preserve the issue of violation of the Rule. This is consistent with the provisions of Pa.R.E. 103 that error may not be predicated on a ruling admitting evidence in the absence of a timely objection, motion to strike, or motion in limine. Of course, the court should provide an opportunity for the making of the objection out of the presence of the jury.