Gonzalez & Waddington, Attorneys at Law defend service members worldwide in Article 120 sexual assault and Article 120c indecent conduct cases at every stage—investigation, Article 32 hearing, trial, sentencing, and appeal. If you’re facing a court-martial for Article 120, here’s exactly what to expect, how the government builds its case, and the strategies that protect your freedom, rank, and future.

Big Picture: How an Article 120 Case Moves Through the System

• Report & investigation: Law enforcement (CID/NCIS/OSI/CGIS) interviews witnesses, collects devices, and requests forensic exams.
• Preferral & referral of charges: Command formally prefers charges; the convening authority decides whether to refer to a court-martial.
• Article 32 preliminary hearing: A hearing officer evaluates probable cause and makes recommendations.
• Arraignment & motions: You’re arraigned; the judge sets deadlines; both sides litigate key evidentiary motions.
• Trial: Voir dire, openings, government case, defense case, rebuttal, instructions, and findings.
• Sentencing: If convicted, the same panel (or judge) hears aggravation, extenuation, and mitigation.
• Post-trial & appeal: Entry of judgment; appeal to the service Court of Criminal Appeals and potentially CAAF.

Phase 1 — Investigation & Evidence Collection

• Witness interviews: Accuser, accused (if you speak—don’t without counsel), friends, coworkers, first responders.
• Forensic exams: Sexual Assault Forensic Exam (SAFE/SANE), toxicology, sustained injury analysis, DNA testing.
• Digital evidence: Texts, DMs, call logs, location data, photos, social media activity, device extractions.
• Medical & mental health records: Sourced through privilege rules and court orders where allowed.
• Command climate evidence: Training records, policies, and reporting protocols.

Defense priorities: Preserve your devices; collect your own messages and witnesses; do not discuss the case; route communications through counsel.

Phase 2 — Article 32 Preliminary Hearing

The Article 32 hearing tests whether there’s probable cause to proceed. It’s not a mini-trial but a crucial discovery and cross-examination opportunity.

• Hearing officer’s role: Receives evidence, hears limited testimony, and recommends disposition to the convening authority.
• Defense leverage: Lock in accuser and key witnesses on timelines; preview forensic issues; preserve impeachment material for trial.
• Outcomes: Proceed as charged, modify charges, or recommend dismissal; the convening authority makes the call.

Phase 3 — Arraignment, Discovery, and Pretrial Motions

• Arraignment: Formal reading of charges; judge sets a litigation schedule.
• Discovery: Government must disclose reports, expert notices, recorded statements, and exculpatory material.
• Key motions in Article 120 cases:
  • MRE 412 (sexual behavior/propensity): Limits accuser’s sexual history; defense may seek narrow admissibility for motive, identity, or alternative source of injury.
  • MRE 513/514 (psychotherapist & victim advocate privileges): Litigate specific, necessary, and narrowly tailored access where the records are material.
  • MRE 404(b) (other acts): Challenge government attempts to admit “pattern” evidence; enforce notice requirements and probative-v-prejudicial balancing.
  • MRE 615 (sequestration): Keep witnesses from tailoring testimony.
  • Experts: Move to compel funding for defense experts (forensic psychology, toxicology, digital forensics, SANE critique).

Phase 4 — Forum Selection: Members (Jury) or Judge-Alone

You (with counsel) choose trial by members (panel) or judge-alone. The decision depends on the facts, your defenses, and the forum’s tendencies.

• Members (panel): Voir dire allows testing bias; panel dynamics can favor narrative + credibility themes.
• Judge-alone: Technical legal defenses, complex evidentiary issues, or sensitive 412 rulings may favor judge-alone.

Phase 5 — Trial: Step-by-Step

Voir Dire

• Question panel members for bias, training preconceptions, or “believe all victims” attitudes.
• Challenge for cause or use peremptory challenges to seat a fair panel.

Openings

• Government: Tells a simple, emotional story; previews SANE and digital evidence.
• Defense: Frame consent or mistake of fact as to consent; preview contradictions and science gaps.

Government Case-in-Chief

• Accuser testimony: Timeline, intoxication claims, memory details—cross-examine on inconsistencies, delay in reporting, post-incident behavior.
• SANE/forensic evidence: Injury doesn’t equal assault; many assaults show no injury. Attack methodology, chain, and alternative causes.
• Digital evidence: Texts/DMs/social posts—context, timing, and completeness matter.
• LE agents: Expose confirmation bias, interview techniques, omissions in notes, and failure to pursue exculpatory leads.

Defense Case

• Consent or mistake of fact: Use contemporaneous messages, behavior after the encounter, and third-party observations.
• Experts: Toxicology (BAC effects), SANE critique, digital forensics (metadata, deletion, context), memory science.
• Character for truthfulness: Where admissible, impeach accuser’s credibility with prior inconsistent statements or bias.
• Accused’s testimony: Strategic; only if it advances the defense and withstands cross—decide with counsel.

Instructions, Findings & Standard

• Judge instructs on elements, consent, mistake of fact, and proof beyond a reasonable doubt.
• Panel deliberates in secret; verdict must be unanimous for certain offenses (consult counsel for current rule set and forum).

Phase 6 — Sentencing (If Convicted)

• Aggravation: Government presents impact statements, disciplinary history, or digital/forensic context.
• Defense extenuation & mitigation: Service record, character letters, mental health treatment, polycompliance, deployment history, family hardship.
• Accused’s unsworn statement: Written, oral, or both—carefully crafted for remorse (if appropriate), rehabilitation, and future risk mitigation.
• Collateral consequences: Sex offender registration, loss of retirement, VA impacts—contextualize for the sentencing authority.

Phase 7 — Post-Trial, Entry of Judgment & Appeals

• Entry of judgment: The military judge finalizes the record.
• Appeals: Automatic review for certain sentences by the service Court of Criminal Appeals; possible further review by CAAF.
• Issues on appeal: Evidentiary rulings (412/404(b)/513/514), legal sufficiency, ineffective assistance, unlawful command influence, improper argument.
• Post-conviction relief: When appropriate, seek sentence relief, rehearings, or new trials if new evidence emerges.

Defense Strategies That Move the Needle

• Own the timeline: Visual timeline of texts, calls, movements, and witnesses—easy for panel to follow.
• Science on your side: Use experts to translate complex medical/toxicology issues into plain language.
• Digital context: Avoid cherry-picks—show complete message threads and metadata to prevent misleading snippets.
• Pretrial wins matter: Motions (412/513/514/404(b)) shape the trial battlefield—litigate them relentlessly.
• Respectful cross: Effective impeachment without alienating the panel; precision beats aggression.

Common Mistakes Accused Service Members Make

• Talking to investigators without a lawyer or trying to “explain” the encounter.
• Contacting the accuser or discussing the case on social media.
• Assuming a clean record guarantees acquittal.
• Waiting to hire experienced Article 120 counsel; early motion practice is critical.

Typical Timeline (Your Case May Vary)

• Month 0–2: Investigation, device seizures, SANE exam, witness interviews.
• Month 2–4: Preferral, Article 32 hearing, referral decision.
• Month 4–8: Motions, discovery, expert notices, voir dire prep.
• Month 6–10: Trial week (forum selection, trial, findings, sentencing).
• Post-trial: Entry of judgment, appeal to the service CCA.

Speed can differ based on venue, lab backlogs, and motion complexity.

Video: Inside a Military Article 120 Court-Martial

Accused of Article 120? Get a Battle-Tested Defense Team

We build evidence-dense, expert-driven defenses that expose credibility gaps, attack flawed science, and humanize the accused. Your life, liberty, and legacy are on the line—don’t go it alone.

Gonzalez & Waddington — ucmjdefense.com — 1-800-921-8607

FAQs: Article 120 Court-Martials