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Office of the Press Secretary

For Immediate Release October 7, 1999


                     1999 AMENDMENTS TO THE MANUAL

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:

  1. R.C.M. 502(c) is amended to read 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

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

             (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.

             (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

             (4)  The voice of the military judge shall be transmitted
          into the remote location to allow control of the proceedings;

             (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:

  1. Insert the following new rule after Mil. R. Evid. 512:
          "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

          (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

             (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

          (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

             (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

             (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

             (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

             (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:

  1. Insert the following new paragraph after paragraph 100:
          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

             (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

             (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:

  1. 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.
  2. Military Rule of Evidence 513 shall only apply to communications made after 1 November 1999.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.


                            THE WHITE HOUSE,
                            October 6, 1999.

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