Effective Date: October 06, 1999
|Responsible Office: Office of General Counsel|
|Subject: 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
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:
"(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
"(c) Voluntary absence for limited purpose of child testimony.
(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
(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
(1) The witness shall testify from a remote location outside the courtroom;
(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
e. R.C.M. 1003(b) is amended
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:
a. Insert the following new rule after Mil. R. Evid. 512:
(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.
b. Mil. R. Evid. 611 is amended by inserting the following new subsection at the end:
(d) Remote live testimony of a child.
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:
100a. Article 134-(Reckless endangerment)
(1) That the accused did engage in conduct;
(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.
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 to 1 November 1999, and any such nonjudicial
punishment, restraint, investigation, referral of
/s/William J. Clinton
THE WHITE HOUSE,
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 IT MGM).
a. R.C.M. 502(c). The analysis a accompanying R.C.M. 502(c) is amended by inserting the following at the end there thereof:
"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
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
"(c) Voluntary absence for limited purpose of child testimony.
c. R.C.M. 914A. Insert the following analysis after the analysis to R.C.M. 914:
"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 Mary1and 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):
"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:
"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:
"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:
"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:
"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
b. Mil. R. Evid. 513. Insert the following analysis after the analysis of Mil. R. Evid. 512:
"1999 Amendment: Military Rule of Evidence 513 establishes a psychotherapist-patient privilege for investigations or proceeding authorized under the Uniform Code of Military Justice. Rule 513 clarifies military Justice. Rule 513 clarifies military law in light of the Supreme Court decision in Jaffee v. Redmond, 518 U.S.1, 116S. Ct. 1923, 135 L.ed.2d 337 (1996). Jaffee interpreted Federal Rule of Evidence 501 to create a federal psycyhotherapist-patient privilege in civil proceedings and refers federal courts to state laws to determine the extent of privileges. In deciding to adopt this privilege fore 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 than those authorized under the UCMJ. 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 states rules of evidence.
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.
(a) General rule of privilege. The words "under the UCMJ" in the 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.
(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,
c. Mil. R. Evid. 611. The analysis accompanying Rule 611 is amended by adding at the end of the analysis the following:
"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:
"100a. Article 134-(Reckless endangerment)
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
definition 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
Changes to Forms of Sentences of the Manual for Courts-Martial, United States
a. Paragraph b of Appendix 11, Forms of Sentences, is amended-
(1) by striking the catch phrase "Loss of Numbers, Etc."
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
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).
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