Similar to its federal counterpart, Indiana Rule of Evidence 806 provides that

When a hearsay statement ­ or a statement described in Rule 801 (d)(2)(C), (D), or (E) ­ has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

While this rule is pretty straightforward, apparently it has never been applied in an Indiana case before In re Trust of B. Alice McCoy, 2026 WL 1262304 (Ind. App. 2026).

In McCoy,

B. Alice McCoy was diagnosed with Alzheimer’s disease in 2009. In early 2012, she and her husband, Morris, decided to change their estate plans so that one of their three children, Michael, wouldn’t receive any of their rental properties. Morris and Alice hired an attorney, who prepared the documents, including revocable trusts, and met with Morris and Alice to review and execute them in August 2012. After Alice died in 2021, Michael filed her trust with the trial court and moved to set it aside on grounds that she lacked testamentary capacity in August 2012.

Before trial, Michael deposed the attorney, who denied knowing anything about Alice’s mental or medical condition before August 2012 and denied that family members had reported any cognitive decline to him before then. Six months after the deposition and two business days before the bench trial, the attorney turned over two emails. In the first email dated March 2012, the attorney wrote to his law partner that Alice (1) “probably” has “very early Alzheimer’s,” (2) her family members “do not openly admit her developing limitations,” and (3) he didn’t know if her family knows that she isn’t qualified to serve as trustee of Morris’s trust. In the second email dated April 2012, Morris told the attorney that (1) Alice is “seeing a neurologist” and “taking 2 kinds of medicine”; (2) he might be able to get her declared incompetent if the attorney thought it “would help”; and (3) Alice “does not understand everything she is signing.”

Thereafter, “[a]t trial, the parties agreed to admit the attorney’s deposition in lieu of his live testimony.” Subsequently, “Michael moved to admit the emails, arguing that they impeach the attorney’s credibility and would help the court evaluate the opinions of certain expert witnesses under Indiana Evidence Rule 703,” but “[t]he trial court excluded the emails on hearsay grounds without ever reviewing them.”

The Court of Appeals of Indiana reversed, concluding as follows:

As a matter of first impression, we hold that under Indiana Evidence Rule 806, when a hearsay statement, such as the attorney’s deposition here, has been admitted into evidence, the hearsay declarant’s credibility may be attacked as though they had testified in person. The trial court erred in not admitting the emails for this purpose. The court also erred in not allowing Michael to refer to the emails during his direct and cross-examination of the experts so that the court could evaluate their opinions. Because the emails went to the key issue in this case, we vacate the court’s order. On remand, the court shall admit the emails, reweigh the evidence, and issue a new order.