The Waiver Doctrine Regarding Improprieties of the Trial Judge
In Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985), the Pennsylvania Supreme Court recognized a limited exception to the waiver doctrine in cases of judicial intemperance.
The Court noted the fact that "In the courtroom, the judge is the foremost authority, second to none and no governor of the judge's conduct resides in the courtroom save the judge."
The Court continued, citing Commonwealth v. Myma 278 Pa. 505, 123 A. 486 (1924) for the following proposition:
The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality.... to depart from the clear line of duty through questions, expressions, or conduct, contravenes the orderly administration of justice.Hammer, 508 Pa. at 96, 494 A.2d at 1058.
The duty therefore lies with the judge to insure that his conduct is 'above reproach,' or minimally, is not prejudicial.
The Court therefore questioned the continued validity of the waiver doctrine as applied to improprieties of the trial judge for when the position of power and authority enjoyed by the judge is considered, the strict enforcement of the waiver doctrine becomes inadvisable. Hammer, 508 Pa. at 96-97, 494 A.2d at 1058.
The Court noted that the Code of Judicial Conduct recognizes "that the judge is the foremost regulator of his own conduct."
The court continued:
The efficacy of counsel in assuring impartiality of the judge is negated by this self-regulatory function and the authority of the bench, for a judge who poses a question or makes a comment during trial is predisposed to believe that the question or comment is proper, lest it not be spoken.
Given that predisposition, the likelihood that the judge will be well-cautioned by counsel's objection is negligible.
In that context, the rationale underlying the waiver doctrine, that timely objection gives the court the opportunity to cure the error, becomes a relatively empty one.
Indeed the possibility exists that counsel's objection will be viewed as a source of annoyance and may well aggravate the situation.
Thus, we are not inclined to strictly enforce the waiver doctrine in the case of judicial intemperance for counsel cannot veto actions viewed by the judge to be wholly permissible. Hammer, 508 Pa. at 98-99, 494 A.2d at 1059-1060.