Murdaugh Retrial: What the Prosecution Can No Longer Tell the Jury

**Tony Brueski** (0:01)
This is Hidden Killers Live with Tony Brueski and Robin Dreeke.

**Tony Brueski** (0:08)
Creighton Waters told reporters after the Supreme Court ruling that the genie is out of the bottle. Every potential juror already knows the Murdaugh saga, but the court just told his team they can't present it the way they did the first time either. Prosecutors, they spent 12 and a half hours on financial crimes testimony in the original trial. The Supreme Court called it excessive, prejudicial, and said it went far beyond what was necessary. Now the AG's office has to prove the same murder case with its strongest narrative weapon, Unleash, a defense that has seen every card in the deck and a jury pool saturated in three years of coverage. Bob Motta, host of Defense Diaries, is with us to break down what the prosecution may have up their sleeve this time in the next trial of Alex Murdaugh. There's obviously there's a ton of witnesses that are going to come back for a repeat experience. Let me ask you this Bob, as a defense attorney, in a retrial type situation, when you are bringing witnesses back to the stand, you're going to question them, they're going to give their testimony. What happens if their testimony doesn't quite line up with the same way it lined up the first time? Is that something that then the defense can bring up during the actual trial, going, wait a second, you just impeached yourself from what you said in round one.
And I guess, what is the bar on that? Because I'm sure they're ready to make mountains out of mole hills because it will certainly be exciting in front of a jury. And when you're talking about a crime that committed this many years ago, everyone is human, the mind may sometimes be off on certain things. I'm not saying like massively different stories like Alec pitched of being at the kennels or not. I'm saying just little nuances here and there, things like that.
What could be impeached? What will be pointed at? Is it literally, you better say pretty much exactly what you said or they're going to be all over you?

**Bob Motta** (2:11)
Yeah, I mean, look, if it's a prior inconsistent statement, you do exactly what you said. You impeach them on it. You know, you basically, with the transcripts, that testimony is locked in. It was under oath. It was in a courtroom. No one could ever say it was hearsay because it's not. So, you know, what you do if you're the defense, and it goes for Creighton Waters as well, you know? I mean, if the defense is going to put it on any experts or anybody that was a witness in the first trial and they have inconsistent statements, the state obviously has the ability to be able to impeach them too, but if you're going to nitpick on things that are really of no significance, it's going to damage you.
It's got to be something substantive that is being changed.

**Robin Dreeke** (2:59)
I mean, so if you're doing that and putting me on the stand, I can say, can you please refresh my memory on what I said last time? I'll just say, yeah, that again.
Is that possible?

**Bob Motta** (3:07)
Yeah, I mean, you can. You can certainly say, I don't recall if they ask you what you said during the first trial. But typically, the way the impeachment goes is you got to lay the trap. You got to perfect the impeachment.
So typically, there's going to be a question to ask. And they'll know ahead of time or they'll have a pretty good idea. But they're going to have all these areas marked in terms of the transcripts from the first trial wherein they're going to test the waters to see if they change their answers. And if they do at that point, then they'll impeach them at that point. But they've got to get them saying something different at this trial. And then once they perfect the impeachment, then they can go back and impeach them with what they said at the prior trial. But again, it's not going to be nuanced turns of phrases that you're impeaching. You know, saying the same thing, but saying it in a different way is an impeachment.

**Robin Dreeke** (4:09)
Right, because it's completely plausible over periods of time, watching news, watching social media, that your recollection of what happens, the timing of it, what came first, the chicken or the egg, that can shift around a bit after periods of time and listen to other people and their thoughts, their opinions, watching true crime shows. I mean, there's a lot of things that can start shifting. It's not going to shift from the core, but how that core is delivered, that can shift and still be accurate. That's why I'd say I would want to know what I said the last time, to refresh my memory, to clear the fog of all the other shit that infused it between then and now.