1999 Amendments to the Manual for Courts-Martial, United States
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By the authority vested in me as President by the Constitution and the laws of the United States of America, including chapter 47 of title 10, United States Code (Uniform Code of Military Justice, 10 U.S.C. 801-946), in order to prescribe amendments to the Manual for Courts-Martial, United States, prescribed by Executive Order 12473, as amended by Executive Order 12484, Executive Order 12550, Executive Order 12586, Executive Order 12708, Executive Order 12767, Executive Order 12888, Executive Order 12936, Executive Order 12960, and Executive Order 13086, it is hereby ordered as follows:
Section 1. Part II of the Manual for Courts-Martial, United States, is amended as follows:
a. R.C.M. 502(c) is amended to read as follows:
L"(c) Qualifications of military judge. A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of which such military judge is a member. In addition, the military judge of a general court-martial shall be designated for such duties by the Judge Advocate General or the Judge Advocate General's designee, certified to be qualified for duty as a military judge of a general court-martial, and assigned and directly responsible to the Judge Advocate General or the Judge Advocate General's designee. The Secretary concerned may prescribe additional qualifications for military judges in special courts-martial. As used in this subsection "military judge" does not include the president of a special court-martial without a military judge."
b. R.C.M. 804 is amended by redesignating the current subsection (c) as subsection (d) and inserting after subsection (b) the following new subsection (c):
L"(c) Voluntary absence for limited purpose of child testimony.
L (1) Election by accused. Following a determination by the military judge that remote live testimony of a child is appropriate pursuant to Mil. R. Evid. 611(d)(3), the accused may elect to voluntarily absent himself from the courtroom in order to preclude the use of procedures described in R.C.M. 914A.
L (2) Procedure. The accused's absence will be conditional upon his being able to view the witness' testimony from a remote location. Normally, a two-way closed circuit television system will be used to transmit the child's testimony from the courtroom to the accused's location. A one-way closed circuit television system may be used if deemed necessary by the military judge. The accused will also be provided private, contemporaneous communication with his counsel. The procedures described herein shall be employed unless the accused has made a knowing and affirmative waiver of these procedures.
L (3) Effect on accused's rights generally. An election by the accused to be absent pursuant to subsection (c)(1) shall not otherwise affect the accused's right to be present at the remainder of the trial in accordance with this rule."
c. The following new rule is inserted after R.C.M. 914:
L"Rule 914A. Use of remote live testimony of a child
L(a) General procedures. A child shall be allowed to testify out of the presence of the accused after the military judge has determined that the requirements of Mil. R. Evid. 611(d)(3) have been satisfied. The procedure used to take such testimony will be determined by the military judge based upon the exigencies of the situation. However, such testimony should normally be taken via a two-way closed circuit television system. At a minimum, the following procedures shall be observed:
L (1) The witness shall testify from a remote location outside the courtroom;
L (2) Attendance at the remote location shall be limited to the child, counsel for each side (not including an accused pro se), equipment operators, and other persons, such as an attendant for the child, whose presence is deemed necessary by the military judge;
L (3) Sufficient monitors shall be placed in the courtroom to allow viewing and hearing of the testimony by the military judge, the accused, the members, the court reporter and the public;
L (4) The voice of the military judge shall be transmitted into the remote location to allow control of the proceedings; and
L (5) The accused shall be permitted private, contemporaneous communication with his counsel.
L(b) Prohibitions. The procedures described above shall not be used where the accused elects to absent himself from the courtroom pursuant to R.C.M. 804(c)."
d. R.C.M. 1001(b)(4) is amended by inserting the following sentences between the first and second sentences:
L"Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused's offense. In addition, evidence in aggravation may 3
Linclude evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person."
e. R.C.M. 1003(b) is amended—
L (1) by striking subsection (4) and
L (2) by redesignating subsections (5), (6), (7), (8), (9), (10), and (11) as subsections (4), (5), (6), (7), (8), (9), and (10), respectively.
f. R.C.M. 1004(c)(7) is amended by adding at end the following new subsection:
L"(K) The victim of the murder was under 15 years of age."
Sec. 2. Part III of the Manual for Courts-Martial, United States, is amended as follows:
a. Insert the following new rule after Mil. R. Evid. 512:
L"Rule 513. Psychotherapist-patient privilege
L(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition.
L(b) Definitions. As used in this rule of evidence:
L (1) A "patient" is a person who consults with or is examined or interviewed by a psychotherapist for purposes of advice, diagnosis, or treatment of a mental or emotional condition.
L (2) A "psychotherapist" is a psychiatrist, clinical psychologist, or clinical social worker who is licensed in any state, territory, possession, the District of Columbia or Puerto Rico to perform professional services as such, or who holds credentials to provide such services from any military health care facility, or is a person reasonably believed by the patient to have such license or credentials.
L (3) An "assistant to a psychotherapist" is a person directed by or assigned to assist a psychotherapist in providing professional services, or is reasonably believed by the patient to be such.
L (4) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional services to the patient or those reasonably necessary for such transmission of the communication.
L (5) "Evidence of a patient's records or communications" is testimony of a psychotherapist, or assistant to the same, or patient records that pertain to communications by a patient to a psychotherapist, or assistant to the same for the purposes of diagnosis or treatment of the patient's mental or emotional condition.
L(c) Who may claim the privilege. The privilege may be claimed by the patient or the guardian or conservator of the patient. A person who may claim the privilege may authorize trial counsel or defense counsel to claim the privilege on his or her behalf. The psychotherapist or assistant to the psychotherapist who received the communication may claim the privilege on behalf of the patient. The authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.
L(d) Exceptions. There is no privilege under this rule:
L (1) when the patient is dead;
L (2) when the communication is evidence of spouse abuse, child abuse, or neglect or in a proceeding in which one spouse is charged with a crime against the person of the other spouse or a child of either spouse;
L (3) when federal law, state law, or service regulation imposes a duty to report information contained in a communication;
L (4) when a psychotherapist or assistant to a psychotherapist believes that a patient's mental or emotional condition makes the patient a danger to any person, including the patient;
L (5) if the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud;
L (6) when necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission;
L (7) when an accused offers statements or other evidence concerning his mental condition in defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid. 302. In such situations, the military judge may, upon motion, order disclosure of any statement made by the accused to a psychotherapist as may be necessary in the interests of justice; or
L (8) when admission or disclosure of a communication is constitutionally required.
L(e) Procedure to determine admissibility of patient records or communications.
L (1) In any case in which the production or admission of records or communications of a patient other than the accused is a matter in dis
pute, a party may seek an interlocutory ruling by the military judge. In order to obtain such a ruling, the party shall:
L (A) file a written motion at least 5 days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is sought or offered, or objected to, unless the military judge, for good cause shown, requires a different time for filing or permits filing during trial; and
L (B) serve the motion on the opposing party, the military judge and, if practical, notify the patient or the patient's guardian, conservator, or representative that the motion has been filed and that the patient has an opportunity to be heard as set forth in subparagraph (e)(2).
L (2) Before ordering the production or admission of evidence of a patient's records or communication, the military judge shall conduct a hearing. Upon the motion of counsel for either party and upon good cause shown, the military judge may order the hearing closed. At the hearing, the parties may call witnesses, including the patient, and offer other relevant evidence. The patient shall be afforded a reasonable opportunity to attend the hearing and be heard at the patient's own expense unless the patient has been otherwise subpoenaed or ordered to appear at the hearing. However, the proceedings shall not be unduly delayed for this purpose. In a case before a court-martial composed of a military judge and members, the military judge shall conduct the hearing outside the presence of the members.
L (3) The military judge shall examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.
L (4) To prevent unnecessary disclosure of evidence of a patient's records or communications, the military judge may issue protective orders or may admit only portions of the evidence.
L (5) The motion, related papers, and the record of the hearing shall be sealed and shall remain under seal unless the military judge or an appellate court orders otherwise."
b. Mil. R. Evid. 611 is amended by inserting the following new subsection at the end:
L(d) Remote live testimony of a child.
L (1) In a case involving abuse of a child or domestic violence, the military judge shall, subject to the requirements of subsection (3) of this rule, allow a child victim or witness to testify from an area outside the courtroom as prescribed in R.C.M. 914A.
L (2) The term "child" means a person who is under the age of 16 at the time of his or her testimony. The term "abuse of a child" means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child. The term "exploitation" means child pornography or child prostitution. The term "negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to endanger seriously the physical health of the child. The term "domestic violence" means an offense that has as an element the use, attempted use, or threatened use of physical force against a person and is committed by a current or former spouse, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim.
L (3) Remote live testimony will be used only where the military judge makes a finding on the record that a child is unable to testify in open court in the presence of the accused, for any of the following reasons:
L (A) The child is unable to testify because of fear;
L (B) There is substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying;
L (C) The child suffers from a mental or other infirmity; or
L (D) Conduct by an accused or defense counsel causes the child to be unable to continue testifying.
L (4) Remote live testimony of a child shall not be utilized where the accused elects to absent himself from the courtroom in accordance with R.C.M. 804(c)."
Sec. 3. Part IV of the Manual for Courts-Martial, United States, is amended as follows:
a. Insert the following new paragraph after paragraph 100:
L100a. Article 134—(Reckless endangerment)
La. Text. See paragraph 60.
Lb. Elements.
L (1) That the accused did engage in conduct;
L (2) That the conduct was wrongful and reckless or wanton;
L (3) That the conduct was likely to produce death or grievous bodily harm to another person; and
L (4) That under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Lc. Explanation.
L (1) In general. This offense is intended to prohibit and therefore deter reckless or wanton conduct that wrongfully creates a substantial risk of death or serious injury to others.
L (2) Wrongfulness. Conduct is wrongful when it is without legal justification or excuse.
L (3) Recklessness. "Reckless" conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intentionally cause a resulting harm or know that his conduct is substantially certain to cause that result. The ultimate question is whether, under all the circumstances, the accused's conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others.
L (4) Wantonness. "Wanton" includes "reckless," but may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.
L (5) Likely to produce. When the natural or probable consequence of particular conduct would be death or grievous bodily harm, it may be inferred that the conduct is "likely" to produce that result. See paragraph 54c(4)(a)(ii).
L (6) Grievous bodily harm. "Grievous bodily harm" means serious bodily injury. It does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries.
L (7) Death or injury not required. It is not necessary that death or grievous bodily harm be actually inflicted to prove reckless endangerment.
Ld. Lesser included offenses. None.
Le. Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.
Lf. Sample specification. In that ______________________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about ________________________ 19____, wrongfully and recklessly engage in conduct, to wit:
L(he/she)(describe conduct) and that the accused's conduct was likely to cause death or serious bodily harm to __________________."
Sec. 4. These amendments shall take effect on 1 November 1999, subject to the following:
a. The amendments made to Military Rule of Evidence 611, shall apply only in cases in which arraignment has been completed on or after 1 November 1999. b. Military Rule of Evidence 513 shall only apply to communications made after 1 November 1999. c. The amendments made to Rules for Courts-Martial 502, 804, and 914A shall only apply in cases in which arraignment has been completed on or after 1 November 1999. d. The amendments made to Rules for Courts-Martial 1001(b)(4) and 1004(c)(7) shall only apply to offenses committed after 1 November 1999. e. Nothing in these amendments shall be construed to make punishable any act done or omitted prior to 1 November 1999, which was not punishable when done or omitted. f. The maximum punishment for an offense committed prior to 1 November 1999, shall not exceed the applicable maximum in effect at the time of the commission of such offense. g. Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to 1 November 1999, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.
(Presidential Signature)
THE WHITE HOUSE October 6, 1999. Changes to the Analysis Accompanying the Manual for Courts-Martial, United States.
1. Changes to Appendix 21, the Analysis accompanying the Rules for Courts-Martial, United States (Part II, MCM).
a. R.C.M. 502(c). The analysis accompanying R.C.M. 502(c) is amended by inserting the following at the end thereof: L "1999 Amendment: R.C.M. 502(c) was amended to delete the requirement that military judges be "on active duty" to enable Reserve Component judges to conduct trials during periods of inactive duty for training (IDT) and inactive duty training travel (IATT). The active duty requirement does not appear in Article 26, UCMJ which prescribes the qualifications for military judges. It appears to be a vestigial requirement from paragraph 4e of the 1951 and 1969 MCM. Neither the current MCM nor its predecessors provide an explanation for this additional requirement. It was deleted to enhance efficiency in the military justice system." b. R.C.M. 804(c). The analysis accompanying R.C.M. 804 is amended by redesignating the current subsection (c) as subsection (d) and by inserting after subsection (b) the following new subsection (c): L "(c) Voluntary absence for limited purpose of child testimony. L 1999 Amendment: The amendment provides for two- way closed circuit television to transmit a child's testimony from the courtroom to the accused's location. The use of two-way closed circuit television, to some degree, may defeat the purpose of these alternative procedures, which is to avoid trauma to children. In such cases, the judge has discretion
to direct one-way television communication. The use of one-way closed circuit television was approved by the Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). This amendment also gives the accused the election to absent himself from the courtroom to prevent remote testimony. Such a provision gives the accused a greater role in determining how this issue will be resolved." c. R.C.M. 914A. Insert the following analysis after the analysis to R.C.M. 914: L "1999 Amendment: This rule allows the military judge to determine what procedure to use when taking testimony under Mil. R. Evid. 611(d)(3). It states that normally such testimony should be taken via a two-way closed circuit television system. The rule further prescribes the procedures to be used if a television system is employed. The use of two-way closed circuit television, to some degree, may defeat the purpose of these alternative procedures, which is to avoid trauma to children. In such cases, the judge has discretion to direct one-way television communication. The use of one-way closed circuit television was approved by the Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). This amendment also gives the accused an election to absent himself from the courtroom to prevent remote testimony. Such a provision gives the accused a greater role in determining how this issue will be resolved." d. R.C.M. 1001(b)(4). The analysis to R.C.M. 1001(b)(4) is amended by inserting the following paragraph before the analysis of R.C.M. 1001(b)(5): L "1999 Amendment: R.C.M. 1001(b)(4) was amended by elevating to the Rule language that heretofore appeared in the Discussion to the Rule. The Rule was further amended to recognize that evidence that the offense was a "hate crime" may also be presented to the sentencing authority. The additional "hate crime" language was derived in part from section 3A1.1 of the Federal Sentencing Guidelines, in which hate crime motivation results in an upward adjustment in the level of the offense for which the defendant is sentenced. Courts-martial sentences are not awarded upon the basis of guidelines, such as the Federal Sentencing Guidelines, but rather upon broad considerations of the needs of the service and the accused and on the premise that each sentence is individually tailored to the offender and offense. The upward adjustment used in the Federal Sentencing Guidelines does not directly translate to the court-martial presentencing procedure. Therefore, in order to adapt this concept to the court- martial process, this amendment was made to recognize that "hate crime" motivation is admissible in the court-martial presentencing procedure. This amendment also differs from the Federal Sentencing Guideline in that the amendment does not specify the burden of proof required regarding evidence of "hate crime" motivation. No burden of proof is customarily specified regarding aggravating evidence admitted in the presentencing procedure, with the notable exception of aggravating factors under R.C.M. 1004 in capital cases." e. R.C.M. 1003(b). The analysis accompanying R.C.M. 1003 is amended by adding the following as the last paragraph of the analysis: L "1999 Amendment: Loss of numbers, lineal position, or seniority has been deleted. Although loss of numbers had the effect of lowering precedence for some purposes, e.g., quarters priority, board and court seniority, and actual date of promotion, loss of numbers did not affect the officer's original position for purposes of consideration for retention or promotion. Accordingly, this punishment was deleted because of its negligible consequences and the misconception that it was a meaningful punishment." f. R.C.M. 1004. The analysis to R.C.M. 1004(c)(7) is amended by adding the following as the last paragraph of the analysis: L "1999 Amendment: R.C.M. 1004(c)(7)(K) was added to afford greater protection to victims who are especially vulnerable due to their age."
2. Changes to Appendix 22, the Analysis accompanying the Military Rules of Evidence (Part III, MCM).
a. Mil. R. Evid. 501. The analysis to Mil. R. Evid. 501 is amended— (1) by striking: L"The privilege expressed in Rule 302 and its conforming Manual change in Para. 121, is not a doctor- patient privilege and is not affected by Rule 501(d)." (2) by adding at the end: L "1999 Amendment: The privileges expressed in Rule 513 and Rule 302 and the conforming Manual change in R.C.M. 706, are not physician-patient privileges and are not affected by Rule 501(d)." b. Mil. R. Evid. 513. Insert the following analysis after the analysis of Mil. R. Evid. 512: L "1999 Amendment: Military Rule of Evidence 513 establishes a psychotherapist-patient privilege for investigations or proceedings authorized under the Uniform Code of Military Justice. Rule 513 clarifies military law in light of the Supreme Court decision in Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L.Ed.2d 337 (1996). Jaffee interpreted Federal Rule of Evidence 501 to create a federal psychotherapist- patient privilege in civil proceedings and refers federal courts to state laws to determine the extent of privileges. In deciding to adopt this privilege for courts-martial, the committee balanced the policy of following federal law and rules, when practicable and not inconsistent with the UCMJ or MCM, with the needs of commanders for knowledge of certain types of information affecting the military. The exceptions to the rule have been developed to address the specialized society of the military and separate concerns that must be met to ensure military readiness and national security. See Parker v. Levy, 417 U.S. 733, 743 (1974); U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955); Dept. of the Navy v. Egan, 484 U.S. 518, 530 (1988). There is no intent to apply Rule 513 in any proceeding other than those authorized under the UCMJ. Rule 513 was based in part on proposed Fed. R. Evid. (not adopted) 504 and state rules of evidence. L Rule 513 is not a physician-patient privilege. It is a separate rule based on the social benefit of confidential counseling recognized by Jaffee, and similar to the clergy-penitent privilege. In keeping with American military law since its inception, there is still no physician-patient privilege for members of the Armed Forces. See the analyses for Rule 302 and Rule 501. L(a) General rule of privilege. The words "under the UCMJ" in this rule mean Rule 513 applies only to UCMJ proceedings, and do not limit the availability of such information internally to the services, for appropriate purposes. L(d) Exceptions. These exceptions are intended to emphasize that military commanders are to have access to all information that is necessary for the safety and security of military personnel, operations, installations, and equipment. Therefore, psychotherapists are to provide such information despite a claim of privilege." c. Mil. R. Evid. 611. The analysis accompanying Rule 611 is amended by adding at the end of the analysis the following: L "1999 Amendment: Rule 611(d) is new. This amendment to Rule 611 gives substantive guidance to military judges regarding the use of alternative examination methods for child victims and witnesses in light of the U.S. Supreme Court's decision in Maryland v. Craig, 497 U.S. 836 (1990) and the change in Federal law in 18 U.S.C. section 3509. Although Maryland v. Craig dealt with child witnesses who were themselves the victims of abuse, it should be noted that 18 U.S.C. section 3509, as construed by Federal courts, has been applied to allow non-victim child
witnesses to testify remotely. See, e.g., United States v. Moses, 137 F.3d 894 (6th Cir. 1998) (applying section 3509 to a non-victim child witness, but reversing a child sexual assault conviction on other grounds) and United States v. Quintero, 21 F.3d 885 (9th Cir. 1994) (affirming conviction based on remote testimony of non-victim child witness, but remanding for re-sentencing). This amendment recognizes that child witnesses may be particularly traumatized, even if they are not themselves the direct victims, in cases involving the abuse of other children or domestic violence. This amendment also gives the accused an election to absent himself from the courtroom to prevent remote testimony. Such a provision gives the accused a greater role in determining how this issue will be resolved."
3. Changes to Appendix 23, the Analysis accompanying the Punitive Articles (Part IV, MCM).
The following paragraph is inserted after the analysis of paragraph 100: L"100a. Article 134—(Reckless endangerment) Lc. Explanation. This paragraph is new and is based on United States v. Woods, 28 M.J. 318 (C.M.A. 1989); see also Md. Ann. Code art. 27, sect. 120. The definitions of "reckless" and "wanton" have been taken from Article 111 (drunken or reckless driving). The definition of "likely to produce grievous bodily harm" has been taken from Article 128 (assault)." Changes to Forms of Sentences of the Manual for Courts- Martial, United States
a. Paragraph b of Appendix 11, Forms of Sentences, is amended— L (1) by striking the catch phrase "Loss of Numbers, Etc." L (2) by striking subparagraph 6; L (3) by striking subparagraph 7; L (5) by striking the last sentence from the Note at the end of Paragraph b. b. Paragraph b of Appendix 11, Forms of Sentences, is amended by redesignating paragraphs 8, 9, 10, 11, 12, 13, 14, 15, and 16 as paragraphs 6, 7, 8, 9, 10, 11, 12, 13, and 14 respectively. Changes to the Maximum Punishment Chart of the Manual for Courts-Martial, United States
Appendix 12, the Maximum Punishment Chart, is amended by adding after Art. 134 (Quarantine, breaking) the following: "Reckless endangerment . . . . BCD 1 yr. Total" Changes to the Discussion Accompanying the Manual for Courts-Martial, United States
a. The Discussion following R.C.M. 1001(b)(4) is amended by striking the first paragraph. b. The Discussion to R.C.M. 1003(b) is amended by striking subparagraph (4).