THE WHITE HOUSE
Office of the Press Secretary
EXECUTIVE ORDER
1999 AMENDMENTS TO THE MANUAL
FOR COURTS-MARTIAL, UNITED STATES
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:
"(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):
"(c) Voluntary absence for limited purpose of child
testimony.
(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.
(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.
(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:
"Rule 914A. Use of remote live testimony of a child
(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:
(1) The witness shall testify from a remote location
outside the courtroom;
(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;
(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;
(4) The voice of the military judge shall be transmitted
into the remote location to allow control of the proceedings;
and
(5) The accused shall be permitted private,
contemporaneous communication with his counsel.
(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:
"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 include 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:
(1) by striking subsection (4) and
(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:
"(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:
"Rule 513. Psychotherapist-patient privilege
(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.
(b) Definitions. As used in this rule of evidence:
(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.
(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.
(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.
(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.
(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.
(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
psycho-therapist 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.
(d) Exceptions. There is no privilege under this rule:
(1) when the patient is dead;
(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;
(3) when federal law, state law, or service regulation
imposes a duty to report information contained in a
communication;
(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;
(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;
(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;
(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
(8) when admission or disclosure of a communication is
constitutionally required.
(e) Procedure to determine admissibility of patient
records or communications.
(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 dispute, a party may seek an interlocutory
ruling by the military judge. In order to obtain such a
ruling, the party shall:
(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
(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).
(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.
(3) The military judge shall examine the evidence or a
proffer thereof in camera, if such examination is necessary to
rule on the motion.
(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.
(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:
(d) Remote live testimony of a child.
(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.
(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.
(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:
(A) The child is unable to testify because of fear;
(B) There is substantial likelihood, established by expert
testimony, that the child would suffer emotional trauma from
testifying;
(C) The child suffers from a mental or other infirmity; or
(D) Conduct by an accused or defense counsel causes the
child to be unable to continue testifying.
(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:
100a. Article 134: (Reckless endangerment)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused did engage in conduct;
(2) That the conduct was wrongful and reckless or wanton;
(3) That the conduct was likely to produce death or
grievous bodily harm to another person; and
(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.
c. Explanation.
(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.
(2) Wrongfulness. Conduct is wrongful when it is without
legal justification or excuse.
(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.
(4) Wantonness. "Wanton" includes "reckless," but may
connote willfulness, or a disregard of probable consequences,
and thus describe a more aggravated offense.
(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).
(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.
(7) Death or injury not required. It is not necessary that
death or grievous bodily harm be actually inflicted to prove
reckless endangerment.
d. Lesser included offenses. None.
e. Maximum punishment. Bad-conduct discharge, forfeiture of
all pay and allowances, and confinement for 1 year.
f. 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: (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:
WILLIAM J. CLINTON
THE WHITE HOUSE,
October 6, 1999.
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