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Executive Order 13140

Issued by William J. Clinton on Wednesday 6 October 1999


1999 Amendments to the Manual for Courts-Martial, United States

Federal Register, Volume 64 Issue 196 (Tuesday, October 12, 1999)

[Federal Register Volume 64, Number 196 (Tuesday, October 12, 1999)]
[Presidential Documents]
[Pages 55115-55123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26670]




                        Presidential Documents 



Federal Register / Vol. 64, No. 196 / Tuesday, October 12, 1999 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 55115]]

                Executive Order 13140 of October 6, 1999

                
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:

                    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.''


[[Page 55116]]



                    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:


[[Page 55117]]


                  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

[[Page 55118]]

                    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


[[Page 55119]]


                  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:

[[Page 55120]]

                    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 Sig.)

                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

[[Page 55121]]

                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.''

[[Page 55122]]

                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

[[Page 55123]]

                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).

[FR Doc. 99-26670
Filed 10-8-99; 8:45 am]
Billing code 3195-01-P


Citation: 64 FR 55115
Amends: EO 12473, April 13, 1984;; ; See: EO 12484, July 13, 1984; EO 12550, February 19, 1986; EO 12586, March 3, 1987; EO 12708, March 23, 1990; EO 12767, June 27, 1991; EO 12888, December 23, 1993; EO 12936, November 10, 1994; EO 12960, May 12,
 

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