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

This executive order amends the Manual for Courts-Martial to: (1) allow Reserve Component military judges to serve during inactive duty training; (2) permit remote live testimony by child victims/witnesses in abuse and domestic violence cases via closed-circuit television, with the accused given the option to voluntarily absent himself to prevent such testimony; (3) establish a psychotherapist-patient privilege with exceptions for military safety and security; (4) add hate crime motivation as admissible aggravating evidence at sentencing; (5) eliminate "loss of numbers" as a permissible punishment; and (6) create a new Article 134 offense of reckless endangerment.

Federal Register Open PDF 64 FR 55115

Impact dates

Nov 1, 1999
Amendments take effect; remote testimony rules apply to cases arraigned on or after this date; psychotherapist privilege applies to communications made after this date; hate crime and murder aggravation rules apply to offenses committed after this date

Key directives

Amend R.C.M. 502(c) to remove active duty requirement for military judges
Establish R.C.M. 804(c) allowing accused to voluntarily absent himself to prevent remote child testimony
Create R.C.M. 914A governing remote live testimony procedures for children
Amend R.C.M. 1001(b)(4) to permit hate crime motivation evidence in aggravation
Delete R.C.M. 1003(b)(4) eliminating loss of numbers/lineal position/seniority as punishment
Add R.C.M. 1004(c)(7)(K) making murder of child under 15 an aggravating factor for capital cases
Create Mil. R. Evid. 513 establishing psychotherapist-patient privilege with 8 specified exceptions
Amend Mil. R. Evid. 611(d) to allow remote testimony for child victims/witnesses in abuse/domestic violence cases
Create Article 134 offense of reckless endangerment with maximum punishment of bad-conduct discharge, forfeiture of all pay, and 1 year confinement

Timeline

Immediate

EO takes effect November 1, 1999
Reserve judges may now serve during inactive duty training
Psychotherapist-patient privilege applies to communications made after November 1, 1999

Near term (90d)

Military justice system implements remote testimony procedures for child witnesses
Judge Advocate General offices update certification and assignment procedures for military judges
Commanders and legal offices adapt to new hate crime aggravating evidence rules

Long term

Established precedent for balancing defendant confrontation rights with victim protection in military courts
Created enduring military psychotherapist-patient privilege framework with national security exceptions
Eliminated outdated punishment form affecting officer career structures

Risks & tensions

Remote testimony procedures may create constitutional tension with Sixth Amendment confrontation rights despite Supreme Court approval in Maryland v. Craig
Psychotherapist privilege exceptions for military safety/security create inherent tension between patient confidentiality and command authority
Hate crime aggravating evidence lacks specified burden of proof, potentially creating due process concerns in sentencing
Reserve judge eligibility may raise questions about judicial independence when judges serve in non-active duty status
One-way television option for child testimony, while trauma-reducing, further limits defendant's ability to confront witness