IN THE
Court of Appeals of Indiana FILED In re Petition to Docket Trust of B. Alice McCoy May 08 2026, 8:51 am
Michael D. McCoy, CLERK Indiana Supreme Court Appellant-Petitioner Court of Appeals and Tax Court
v.
Douglas M. McCoy, Appellee-Respondent
May 8, 2026 Court of Appeals Case No. 25A-TR-367 Appeal from the Monroe Circuit Court The Honorable Geoffrey J. Bradley, Judge Trial Court Cause No. 53C01-2110-TR-275
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 1 of 33 Opinion by Judge Vaidik Judges Mathias and Pyle concur.
Vaidik, Judge.
Case Summary [1] 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.
[2] 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,
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 2 of 33 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.”
[3] At trial, the parties agreed to admit the attorney’s deposition in lieu of his live
testimony. 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. The trial court excluded the
emails on hearsay grounds without ever reviewing them. The court concluded
that Alice had testamentary capacity in August 2012 and therefore her trust is
valid. Michael now appeals.
[4] 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.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 3 of 33 Facts and Procedural History [5] Morris and Alice McCoy were married for 67 years and had three children:
Janet, Michael, and Douglas. This case involves two of those children:
Michael, who lives in Montana, and Douglas, who lives in Bloomington.
Morris and Alice owned rental properties in Bloomington, which they managed
themselves from approximately 1968 to 2011. They also owned real estate in
Montana with Michael and his wife. From 1997 to 2011, Morris and Alice
visited Michael and his wife in Montana once a year for several weeks.
[6] Michael began noticing changes with his mother’s health in 2007. During
Morris and Alice’s yearly visit to Montana, Michael noticed that Alice was
getting lost, couldn’t find the bathroom, was shuffling her feet, and was
engaging less. In addition, at the 2007 funeral for Alice’s brother-in-law, whom
she knew very well, Alice didn’t know whose funeral she was attending.
[7] In October 2009, Alice, then age 77, began seeing Dr. Jamie Bales, a
neurologist in Bloomington. During the appointment, Morris reported that
Alice was having memory problems, which had been getting worse over the
past three years. See Ex. Vol. 1 p. 131 (“Husband gives most of the history as
[Alice] feels her memory is fine. Having memory problems. Getting more
confused. . . . Son noted problems 3 years ago. Getting worse over 3 years.”).
Alice was diagnosed with moderate Alzheimer’s disease. Alice saw Dr. Bales
again in June 2011, and Morris reported that Alice had been “declining.” Id. at
125.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 4 of 33 [8] Through the years, Alice underwent several Mini Mental State Examinations
(MMSE), which are tests “used as a screening tool to check for cognitive
impairment.” Joint App. Vol. 2 p. 21. The suggested guidelines for determining
the severity of cognitive impairment are as follows: (1) mild (21-30); (2)
moderate (10-20); and (3) severe (0-9). Alice’s MMSE scores with Dr. Bales
were as follows:
2009: 21
June 2011: 16
September 2011: 18
March 2012: 17
September 2012: 16
Id.
[9] In the fall of 2011, Michael flew to Indiana and drove Morris and Alice to
Montana for their yearly visit. This was the first time that Morris and Alice
didn’t drive themselves. During this visit, Michael noticed that Alice did not
“really comprehend[]” being there. Tr. Vol. 3 p. 101. Michael’s wife also
noticed that Alice was having issues, including incontinence. At the end of their
visit, Michael’s wife drove Morris and Alice back to Bloomington. Upon
returning, Michael’s wife helped Morris and Alice find a company to take over
management of their rental properties. When it came time to sign the contract,
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 5 of 33 Morris had to tell Alice how to spell her name. This prompted Michael’s wife to
recommend that Morris obtain a power of attorney for Alice.
[10] In early February 2012, Morris and Alice decided to make changes to their
1996 estate plans and contacted Bloomington attorney Michael Carmin.
Attorney Carmin knew Morris and Alice through Douglas and their church and
had done other work for them. Also around that time, Alice had her annual
wellness check with her family physician and scored an 18 on her MMSE.
[11] Attorney Carmin met with Morris and Alice on February 28. While Morris
took the lead, Alice “contributed” to the discussions. Joint App. Vol. 2 p. 23.
Morris was upset with Michael’s “financial management” and wanted him and
Alice to “get out” of their involvement with the Montana real estate (including
any loans on it), and Alice expressed “disappointment” in Michael “as a
mother.” Ex. Vol. 4 pp. 126-27. In short, they wanted to treat the Montana real
estate as an early inheritance to Michael. They wanted to give two rental
properties each to Janet, Michael, and Douglas; however, they designated the
two least valuable ones for Michael. See Ex. Vol. 2 pp. 133-34. Attorney
Carmin suggested revocable trusts.
[12] After the initial meeting, Morris emailed Attorney Carmin that he and Alice
had changed their minds and decided not to leave any of the rental properties to
Michael, meaning they would all go to Janet and Douglas. See id. at 139.
[13] Five months after the initial meeting, on July 27, 2012, Attorney Carmin’s
office sent Morris and Alice a draft of their estate-planning documents,
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 6 of 33 including Durable Powers of Attorney, Health Care Durable Powers of
Attorney, Living Will Declarations, Pour-over Wills, and Revocable Trust
Agreements. See id. at 149. The documents established that Michael would
receive the Montana real estate subject to any debt and Janet and Douglas
would split the Bloomington rental properties. See id. at 150. The documents
designated Morris as Alice’s Durable Power of Attorney, Personal
Representative, and Trustee but did not designate Alice in any corresponding
role for Morris.
[14] Changes were then made to the Revocable Trust Agreements that would force
Michael to pay off any debt on the Montana real estate before it could be sold,
see id. at 153 (Attorney Carmin explaining that the changes would “force
Michael’s hand”), and Attorney Carmin sent Morris a final draft on August 6.
The next week, on August 13, Attorney Carmin met with Morris and Alice at
his office to review and execute the documents. Attorney Carmin’s assistant
was also present. According to the trial court’s findings of fact, which are based
on Attorney Carmin’s description, the following transpired:
104. At the Signing Meeting, Alice’s physical appearance was appropriate, and she conducted herself appropriately and in conformity with Carmin’s previous contacts with her and Morris.
105. As was Carmin’s standard practice, both Carmin and his assistant were to converse with Alice because Alice had been relatively quiet during the drafting process. Given that Morris had taken the lead in those discussions Carmin wanted to ensure that Alice had been aware of the changes and agreed with the provisions in her trust.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 7 of 33 106. Carmin was also aware that there were some hard feelings between Morris and Michael. So Carmin wanted to make sure that Alice agreed with the provisions herself, and that Morris was not unilaterally making decisions concerning Michael.
107. Although Alice was quiet during the Signing Meeting, she and Carmin discussed a variety of topics, including financial matters related to debt concerns and the transfer of the Montana Properties, similar to what was contained in his July 27, 2012, and August 6, 2012, correspondences and personal matters.
108. Alice was specifically consulted relative to these changes, and she acknowledged that she agreed that is what she wanted to do.
109. Carmin explained to Alice all the details he and Morris had discussed and confirmed that she understood the same and that she desired the same.
110. During these discussions with Carmin, Alice not only nodded in agreement when the changes and provisions were discussed, but she also verbalized her assent.
111. Nothing in his conversations with Alice led him to suspect that she was experiencing any issues with memory or cognitive functioning.
Joint App. Vol. 2 pp. 26-27. Alice signed the documents, and her signature
appeared as follows:
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 8 of 33 Ex. Vol. 1 p. 60. 1 In comparison, Alice’s signature looked like this several years
earlier:
Id. at 77.
[15] In contrast to Michael, Douglas, who saw his parents more often because they
lived in Bloomington, testified that he didn’t notice any cognitive changes in his
mother until after the estate-planning documents were executed in August
2012—“around late 2013 or early 2014”—and that he didn’t know about her
2009 Alzheimer’s diagnosis until then either. Joint App. Vol. 2 p. 20. According
to Douglas, by early 2015, his mother no longer recognized him.
[16] Morris died in April 2017, and Alice died in July 2021. In October 2021,
Michael filed Alice’s revocable trust in Monroe County. Michael later moved to
set it aside, arguing that Alice didn’t have testamentary capacity when she
executed the estate-planning documents in August 2012.
[17] Michael deposed Attorney Carmin in December 2023. During the deposition,
Michael asked Attorney Carmin about Alice’s testamentary capacity when she
executed the estate-planning documents in August 2012. For example, Michael
1 After the parties filed their briefs, Michael had to resubmit the exhibits due to formatting defects. The resubmission resulted in four exhibit volumes instead of the original three. However, neither Michael nor Douglas updated the citations in their briefs. As such, many of their citations to the exhibits are wrong.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 9 of 33 asked Attorney Carmin if he conducted “any sort of capacity test” for Alice that
day, and Attorney Carmin responded:
That was one because Alice was pretty quiet about things and Morris stated to me that -- I had pre-warned [my assistant] that we would have a conversation with Alice to ensure that she was communicative and lucid and would talk to us and answer questions or at least engage in conversation, provide information as part of the signing. So that was one of the occasions, one of the clients that that was a specific action. And the cause for doing that was not anything Morris had said or Alice had said, it was more what Alice hadn’t said. Throughout this process she was relatively quiet, and Morris was taking the lead on everything. It was part of reassuring myself before signing that this was okay.
Ex. Vol. 4 pp. 44-45. Michael also asked Attorney Carmin whether he knew
about Alice’s cognitive decline or Alzheimer’s diagnosis:
Q Prior to August 13, 2012, so prior to your estate-signing meeting, had you been notified or were you aware that Alice had been diagnosed with Alzheimer’s at a moderate level on October 15th, 2009, by her treating neurologist, Dr. Bales?
A No.
Q You have no reason to disagree or question that diagnosis; correct?
A I had no information about it, so no.
Q Would that have been information you would have wanted to know when preparing Alice’s estate plan in August of 2012?
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 10 of 33 A Had I known, I would have been more specific and -- in any conversation, but at least in the signing conversation, with regard to talking to her and doing my own assessment that she knew what we were doing today and why. . . .
Q So I’m going to revisit the last question just quickly. Would you have wanted to know that when you were preparing her estate plan in August of 2012?
A I don’t like the term want to know. Had I known, I would have acted just a little bit more specifically, but it’s certainly not anything I inquired of anybody, is there anything I need to know, anything like that, no.
Q Would it have been helpful to know that?
A Well, I don’t know if it would have been helpful, but it would have caused me to be a little bit more specific about capacity questions at signing, yes. . . .
Q Were you aware that Alice underwent [a] neurological evaluation back in 2009 due to, quoting medical records, concerns of cognitive decline as reported by her family, end of the quote, and that her family had noted cognitive impairment for three years prior which had been progressively worsening?
****
A . . . . I’m not aware of any of that, no.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 11 of 33 Q. Yeah. So no members of her family reported any cognitive decline to you before August 2012; correct?
A Not that I recall, no.
Q And, again, I don’t want to put words in your mouth, so would that have been helpful to know or would that have caused you . . . to be more specific in your evaluation?
A I don’t want to use the word helpful because that . . . implies that I was hampered in what I was doing, but had I known, I would have -- had I known and had a conversation with Alice, frankly that’s when I probably would have videotaped it just to document a little bit better, but not knowing that and nothing in my conversation with Alice raising any questions or any red flags with me, then, no, I didn’t go on to videotape it.
Id. at 50-54 (emphases added). When Michael asked Attorney Carmin whether
he knew in August 2012 that Alice had taken an MMSE in 2009, Attorney
Carmin responded:
I have no knowledge of any medical fact or condition, diagnosis, treatment, anything with regard to Alice and her mental and medical condition prior to June of 2012. I actually - - not even after that, but certainly as of the date of our first conversation about the trust or doing anything, no, at that point I had no information about her condition at all.
Id. at 55-56 (emphases added). Finally, Michael asked,
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 12 of 33 So were you aware that based on the medical records, and I’m moving forward now to June 2nd, 2011, that Alice’s mental status continued to decline, she continued to show signs of Alzheimer’s disease and/or dementia, she did not know the year, could not spell [the word] world backwards, could not follow a simple written command, again failed the clock test and could not even attempt to write a sentence?
Id. at 57. Attorney Carmin again responded that he had “[n]o information
regarding any of those matters, nor did [he] know of or learn anything that
would cause [him] to suspect any of that.” Id. at 58.
[18] During discovery, Michael sent a non-party request to Attorney Carmin to
produce Alice’s file (the attorney-client privilege was waived). The trial court set
a three-day evidentiary hearing on the issue of Alice’s testamentary capacity for
May 28, 2024. About a month before, on April 24, Michael moved to compel
discovery from Attorney Carmin. The trial court granted Michael’s motion to
compel on May 21 and gave Attorney Carmin two days to produce the
discovery. Two business days before trial—and about six months after his
deposition—Attorney Carmin produced the following two emails: (1) a March
6, 2012 email from Attorney Carmin to a partner in his law firm (marked as
“Exhibit D” at the hearing) and (2) an April 27, 2012 email from Morris to
Attorney Carmin (marked as “Exhibit C” at the hearing). See Tr. Vol. 2 pp. 13
(Michael’s attorney explaining that although Attorney Carmin had produced
parts of his file earlier, they had just recently received these two emails), 14
(Douglas’s attorney taking Michael’s attorney’s word that they had just received
the two emails).
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 13 of 33 [19] Exhibit D states:
Ex. Vol. 2 pp. 13-14. Exhibit C states:
Id. at 11.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 14 of 33 [20] Immediately before the hearing started on May 28, the parties agreed to submit
Attorney Carmin’s deposition in lieu of his live testimony even though
Attorney Carmin was available to testify. See Tr. Vol. 1 p. 35; see also Ind. Trial
Rule 32(A)(3)(f) (“The deposition of a witness, whether or not a party, may be
used by any party for any purpose . . . upon agreement of the parties.”);
Appellee’s Br. p. 39 (“Although it is not reflected in the record, Carmin was
present on the first day of the hearing and the parties agreed to let Carmin to
[sic] leave the courthouse without calling him to the stand.”). Because Attorney
Carmin didn’t testify live, Michael moved to admit Exhibits C and D through
three different witnesses: (1) his medical expert, neuropsychologist Dr. Crystal
Ramos, who opined that Alice lacked testamentary capacity when she executed
the estate-planning documents in August 2012; (2) his estate-planning expert,
attorney Rebecca Geyer, who also opined that Alice lacked testamentary
capacity in August 2012; and (3) Douglas’s medical expert, neuropsychologist
Dr. Polly Westcott, who opined that Alice had testamentary capacity in August
2012. Specifically, Michael argued that Exhibits C and D were admissible
under Indiana Evidence Rule 703 as well as to impeach Attorney Carmin’s
credibility. 2 Each time Michael offered the exhibits, Douglas objected on
2 Douglas asserts that Michael didn’t argue below that Exhibits C and D were admissible to impeach Attorney Carmin’s credibility or mention Evidence Rule 806 and therefore he has waived review of this issue. See Appellee’s Br. p. 31 (“Michael never argued below the exhibits were being offered for Carmin’s impeachment. He never uttered the words ‘impeach,’ ‘impeachment,’ ‘credibility,’ ‘truthfulness,’ or ‘veracity’ (or variations thereof) before the trial court. Likewise, Michael never mentioned or made any argument about Rule 806 to the trial court.”). But as Michael responds, he did argue below that Exhibits C and D “contradicted” Attorney Carmin’s deposition testimony. See Appellant’s Br. p. 21 (citing Tr. Vol. 2 p. 10); Appellant’s Reply Br. pp. 8 (“Semantics aside, the substance of Michael’s point was not lost on anyone. He wanted to contradict—or impeach—a witness’s testimony with a document.”), 10 (acknowledging that “no
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 15 of 33 hearsay grounds. The court sustained Douglas’s hearsay objections and did not
admit Exhibits C or D into evidence or allow Michael to ask any of the
witnesses about the content of the emails. In fact, the court never looked at
Exhibits C and D and set up a procedure whereby at the end of the three-day
hearing the judge left the courtroom when they were tendered for the record.
See Tr. Vol. 3 pp. 69-70, 174-78.
[21] In January 2025, the trial court issued an order that Alice had testamentary
capacity when she executed the estate-planning documents in August 2012 and
therefore her revocable trust is valid. In reaching this conclusion, the court
relied largely on Attorney Carmin’s and Dr. Westcott’s testimony. See, e.g.,
Joint App. Vol. 2 p. 28 (“Dr. Polly Westcott’s education, training, and
experience in neuropsychology, particularly Alzheimer’s and forensic
neuropsychology, qualify her to assist the Court in understanding Alice’s
condition and testamentary capacity on August 13, 2012” and “Carmin was the
best suited to opine regarding Alice’s testamentary capacity on August 13,
2012, as the estate planning attorney with the personal and face-to-face
experience and communications with Alice on that date.”).
[22] Michael now appeals. The distribution of Alice’s trust assets has been stayed
pending appeal.
one raised [Evidence Rule 806] by name below” but that “once again, no one was in the dark that Michael was attempting to impeach a witness who testified by deposition”). There is no waiver.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 16 of 33 Discussion and Decision [23] Michael appeals the trial court’s order that Alice had testamentary capacity
when she executed the estate-planning documents in August 2012 and therefore
her revocable trust is valid. “The capacity of a settlor that is required to create,
amend, revoke, or add property to a revocable trust is the same as the capacity
of a testator that is required to make a will.” Ind. Code § 30-4-2-10(b). Every
person is presumed to be of sound mind to execute a will. In re Tr. of Rhoades,
993 N.E.2d 291, 299 (Ind. Ct. App. 2013). To rebut this presumption, a party
must show that the testator, at the time the document is executed, lacks the
mental capacity to know: “(1) the extent and value of [her] property; (2) those
who are the natural objects of [her] bounty; and (3) their deserts, with respect to
their treatment of and conduct towards [her].” Id.
[24] Michael contends that the trial court erred in excluding Exhibits C and D. A
trial court has broad discretion to admit or exclude evidence. Abbas v. Neter-Nu,
261 N.E.3d 233, 248 (Ind. 2025). “This Court will only disturb a trial court’s
ruling if it amounts to an abuse of discretion, meaning the court’s decision is
clearly against the logic and effect of the facts and circumstances or it is a
misinterpretation of the law.” Id. (quotation omitted).
I. The trial court erred by not admitting Exhibits C and D so that Michael could attack Attorney Carmin’s credibility [25] Michael first argues that Exhibits C and D were admissible to attack Attorney
Carmin’s credibility because the emails are “flatly inconsistent with” and
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 17 of 33 “directly contradict[]” his deposition testimony that he didn’t know about
Alice’s capacity issues. Appellant’s Br. p. 35; Appellant’s Reply Br. p. 12. “Any
party, including the party that called the witness, may attack the witness’s
credibility.” Ind. Evidence Rule 607. There are five primary ways to do so:
(1) through a showing that the witness has made statements inconsistent with his testimony;
(2) through a showing that the witness is biased or prejudiced for or against a party;
(3) through a general or specific attack upon the witness’s character;
(4) through a showing of a defect in the witness’s capacity to observe and recall the events about which testimony is given; and
(5) contradiction of the witness’s testimony by other evidence.
12 Robert Lowell Miller, Jr., Indiana Practice, Indiana Evidence § 607.101 (4th
ed. Aug. 2025 update); see also Ellyson v. State, 603 N.E.2d 1369, 1375 (Ind. Ct.
App. 1992) (listing six methods, one of which was later eliminated by the
adoption of Evidence Rule 610).
A. Exhibit D is admissible as Attorney Carmin’s prior inconsistent statement
[26] Michael first asserts that Exhibit D, which is Attorney Carmin’s email to his
law partner, is admissible as a prior inconsistent statement. In Exhibit D,
Attorney Carmin wrote in March 2012 that (1) Alice “probably has very early
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 18 of 33 Alzheimer’s,” (2) he didn’t know whether her family “recognize[s] the need to
remove her as trustee if something happens to Morris,” and (3) her family
“do[es] not openly admit her developing limitations.” Evidence Rule 613
“allows the use of a prior inconsistent statement to impeach a witness,” but
“not as substantive evidence of the matter reported.” Jackson v. State, 925
N.E.2d 369, 375 (Ind. 2010), reh’g denied; Young v. State, 746 N.E.2d 920, 926
(Ind. 2001); see also 12 Robert Lowell Miller, Jr., at § 613.101 (“[P]roof of the
prior statement ordinarily is admissible, not to prove the truth of the witness’s
prior statement, but solely to show that the witness’s trial testimony constitutes
only his most recent tale.”). “The use of a prior inconsistent statement to
impeach a witness’s credibility requires that the statement actually be
inconsistent with another statement.” Pribie v. State, 46 N.E.3d 1241, 1249 (Ind.
Ct. App. 2015), trans. denied; see also Dunlap v. State, 761 N.E.2d 837, 843 n.6
(Ind. 2002).
[27] Here, we have little trouble concluding that Attorney Carmin made statements
in his March 2012 email that are inconsistent with statements he later made in
his December 2023 deposition. For example, after extensive questioning about
what he knew about Alice’s mental capacity when she executed the estate-
planning documents in August 2012, Attorney Carmin denied knowing
anything about Alice’s mental or medical condition:
I have no knowledge of any medical fact or condition, diagnosis, treatment, anything with regard to Alice and her mental and medical condition prior to June of 2012. I actually -- not even after that, but certainly as of the date of our first
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 19 of 33 conversation about the trust or doing anything, no, at that point I had no information about her condition at all.
Ex. Vol. 4 pp. 55-56 (emphases added). Michael then asked:
So were you aware that based on the medical records, and I’m moving forward now to June 2nd, 2011, that Alice’s mental status continued to decline, she continued to show signs of Alzheimer’s disease and/or dementia, she did not know the year, could not spell [the word] world backwards, could not follow a simple written command, again failed the clock test and could not even attempt to write a sentence?
Id. at 57. Attorney Carmin again responded that he had “[n]o information
regarding any of those matters, nor did I know of or learn anything that would
cause me to suspect any of that.” Id. at 58 (emphasis added). But these
statements are flatly inconsistent with Attorney Carmin’s statement to his law
partner that Alice “probably” has “very early Alzheimer’s,” that her family
members “do not openly admit her developing limitations,” and that he didn’t
know if her family knows that she isn’t qualified to serve as trustee of Morris’s
trust.
[28] Evidence Rule 613 sets forth the procedure for impeaching a witness with a
prior inconsistent statement and addresses when extrinsic evidence of that
statement is admissible:
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its content to the witness. But
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 20 of 33 the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Evidence Rule 613(b)’s foundation requirement, however, does not apply where
the declarant does not testify live because a witness who testifies by deposition
obviously cannot be personally confronted with impeachment evidence at trial.
Because Attorney Carmin testified by deposition rather than live, Evidence
Rule 806 governs. That rule provides:
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.
Evid. R. 806 (emphases added). Evidence Rule 806, which mirrors the federal
rule, has not previously been construed by an Indiana court. The federal rule, as
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 21 of 33 one leading treatise notes, is “seldom invoked or seen in practice.” 5 Mueller &
Fitzpatrick, Federal Evidence § 8:137 (4th ed. July 2025 update).
[29] Under Evidence Rule 806, when a hearsay statement has been admitted into
evidence, the hearsay declarant’s credibility may be attacked as though they had
testified in person. See 13 Robert Lowell Miller, Jr., Indiana Practice, Indiana
Evidence § 806.101 (4th ed. Aug. 2025 update) (explaining that a hearsay
declarant “is no less a witness than one who testifies in person”); see also Fed. R.
Evid. 806 advisory committee’s note to 1972 proposed rules (“The declarant of
a hearsay statement which is admitted in evidence is in effect a witness. His
credibility should in fairness be subject to impeachment and support as though
he had in fact testified.”); 5 Mueller & Fitzpatrick at § 8:138 (“When an out-of-
court statement is admitted as proof of what it asserts, Rule 806 leaves no doubt
that any party who wishes to discredit the speaker may do so.”). And when an
inconsistent statement is involved, Evidence Rule 613(b)’s foundation
requirements are “waive[d].” 12 Robert Lowell Miller, Jr., at § 613.201; see also
2 Kenneth S. Broun, McCormick on Evidence § 324.2 (9th ed. Feb. 2025 update)
(“With regard to impeachment by prior inconsistent statements, the rule
eliminates the requirement, otherwise applicable to statements made by
witnesses who testify in person, that an opportunity be afforded for them to
explain or deny the inconsistency.” (footnotes omitted)). But other rules of
evidence, including Evidence Rule 403’s balancing test and authentication,
apply. 12 Robert Lowell Miller, Jr., at § 613.201; 13 Robert Lowell Miller, Jr.,
at § 806.101; see also 2 Kenneth S. Broun at § 324.2 (“When the declarant does
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 22 of 33 not take the stand, the procedure for conducting the impeachment should be
relaxed, but separate restrictions in other rules are not eliminated.” (footnotes
omitted)).
[30] Here, the parties agreed to submit Attorney Carmin’s deposition in lieu of his
live testimony. His deposition constitutes hearsay—an out-of-court statement
offered into evidence to prove the truth of the matter asserted. See Evid. R.
801(c); Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002) (“Generally, deposition
testimony of an absent witness offered in court to prove the truth of the matter
asserted constitutes classic hearsay.”). The parties’ agreement to submit the
deposition under Trial Rule 32 doesn’t change the hearsay character of the
statement for Evidence Rule 806 purposes. Although Trial Rule 32 supplies a
procedural vehicle for using deposition testimony in lieu of live testimony, it
does not transform an out-of-court statement offered for its truth into something
other than hearsay, and it does not displace Evidence Rule 806’s guarantee that
a hearsay declarant’s credibility may be attacked. Because the deposition
constitutes an out-of-court statement offered for the truth of the matter asserted
and therefore hearsay under Evidence Rule 801(c), Evidence Rule 806 applies. 3
3 The advisory committee’s note to Federal Rule of Evidence 806 contemplates that the hearsay statement can be a deposition: When the impeaching statement was made prior to the hearsay statement, differences in the kinds of hearsay appear which arguably may justify differences in treatment. If the hearsay consisted of a simple statement by the witness, e.g. a dying declaration or a declaration against interest, the feasibility of affording him an opportunity to deny or explain encounters the same practical impossibility as where the statement is a subsequent one, just discussed, although here the impossibility arises from the total absence of anything resembling a hearing at which the matter could be put to him. The courts by a large majority have ruled in favor of allowing the statement to be used under these circumstances. McCormick § 37, p. 69; 3 Wigmore § 1033. If,
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 23 of 33 And under that rule, the trial court was authorized to admit Exhibit D into
evidence.
[31] As explained above, the admission is subject to other rules of evidence,
including Evidence Rule 403’s balancing test and authentication. Here, the
issue of Alice’s testamentary capacity was tried to the trial court and not a jury.
Trial judges are “presumed to know the intricacies of the rules of evidence and
to consider the evidence” for the correct purpose. Leisure v. Wheeler, 828 N.E.2d
409, 417 n.3 (Ind. Ct. App. 2005). Here, however, the trial court never looked
at either exhibit and therefore did not conduct the balancing test. But there is no
concern that the probative value of the impeachment evidence is substantially
outweighed by the danger of any of the concerns listed in Evidence Rule 403.
The trial was to the bench, so there was no risk of jury confusion or misuse, the
emails go to the central issue in the case rather than a collateral matter, and the
however, the hearsay consists of former testimony or a deposition, the possibility of calling the prior statement to the attention of the witness or deponent is not ruled out, since the opportunity to cross-examine was available. It might thus be concluded that with former testimony or depositions the conventional foundation should be insisted upon. Most of the cases involve depositions, and Wigmore describes them as divided. 3 Wigmore § 1031. Deposition procedures at best are cumbersome and expensive, and to require the laying of the foundation may impose an undue burden. Under the federal practice, there is no way of knowing with certainty at the time of taking a deposition whether it is merely for discovery or will ultimately end up in evidence. With respect to both former testimony and depositions the possibility exists that knowledge of the statement might not be acquired until after the time of the cross- examination. Moreover, the expanded admissibility of former testimony and depositions under Rule 804(b)(1) calls for a correspondingly expanded approach to impeachment. The rule dispenses with the requirement in all hearsay situations, which is readily administered and best calculated to lead to fair results. (Emphases added). That is precisely what occurred here—Exhibits C and D were not produced until about six months after Attorney Carmin’s deposition, making it impossible for Michael to confront him with the emails at that time.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 24 of 33 probative value of evidence directly contradicting the only witness who
observed Alice at the signing is high.
[32] As for authentication, Exhibit D was an email that Attorney Carmin had sent,
and it came from his own file pursuant to a court order compelling discovery.
This satisfies the authentication requirement under Evidence Rule 901. The trial
court erred by not admitting Exhibit D so that Michael could impeach Attorney
Carmin’s deposition testimony with his prior inconsistent statements in the
email. 4
B. Exhibit C is admissible to contradict Attorney Carmin’s deposition testimony
[33] Exhibit C requires a separate analysis. This is because Exhibit D contains a
prior inconsistent statement of Attorney Carmin, which is governed by
Evidence Rule 613. Exhibit C, however, is Morris’s email to Attorney Carmin.
Although Exhibit C does not contain a prior inconsistent statement of Attorney
Carmin, it is nonetheless admissible to contradict his deposition testimony. See
12 Robert Lowell Miller, Jr., at § 607.101; 5 Mueller & Fitzpatrick at § 8:138
(explaining that an attack on an out-of-court speaker “may proceed by using
any and all five of the recognized methods of impeachment” and that for the
4 Michael argues that the part of Attorney Carmin’s email about trying to “cultivate” the McCoys as “bigger clients” shows that he was “biased,” which is another way to impeach a witness’s credibility. Appellant’s Br. p. 38. Specifically, he claims that this portion of the email “indicated that at the time of the signing, Morris and Douglas were clients of a competing law firm, and Carmin was trying to steal them away.” Id. We agree with Douglas that this is too tenuous of a connection to show bias. Accordingly, the trial court shall not consider this part of the email for purposes of bias.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 25 of 33 fifth method (contradiction), “the rules governing contradiction of witnesses
apply equally to contradiction of out-of-court declarants”).
[34] Michael sought to contradict Attorney Carmin’s deposition testimony with
Morris’s email. When Michael asked Attorney Carmin during the deposition if
any of Alice’s family members had “reported any cognitive decline to [him]
before August 2012,” Attorney Carmin responded, “Not that I recall, no.” Ex.
Vol. 4 p. 53. Attorney Carmin also testified that he had “no knowledge” of
“anything” related to Alice’s medical or mental condition. Id. at 55. But in
Morris’s April 2012 email to Attorney Carmin, Morris stated that (1) Alice is
“seeing a neurologist,” Dr. Jamie Bales, and “taking 2 kinds of medicine”; (2)
he might be able to get her declared incompetent if Attorney Carmin thought it
“would help”; and (3) Alice “does not understand everything she is signing.”
Ex. Vol. 2 p. 11. Exhibit C met the authentication and Evidence Rule 403
balancing test for the same reasons as Exhibit D. The trial court erred by not
admitting Exhibit C so that Michael could contradict Attorney Carmin’s
deposition testimony with the email under Evidence Rule 806.
II. The trial court erred in not allowing Michael to refer to Exhibits C and D during his direct and cross-examination of the experts [35] Michael also argues that the trial court erred in excluding Exhibits C and D
during the questioning of the experts under Evidence Rule 703, which provides:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 26 of 33 Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.
Relatedly, under Evidence Rule 705, on direct examination an expert may state
an opinion and give the reasons for it “without first testifying to the underlying
facts or data”; however, they “may be required to disclose those facts or data on
cross examination.” See also 13 Robert Lowell Miller, Jr., at § 703.109
(explaining that Evidence Rule 705 “entitles the cross-examiner, subject to Rule
403, to inquire into the bases for the expert’s opinion”).
[36] Michael argues that Exhibits C and D were admissible through direct
examination of his experts, Dr. Ramos and Geyer, as well as through cross-
examination of Douglas’s expert, Dr. Westcott. We begin with the direct
examination of Dr. Ramos and Geyer, during which Michael moved to admit
the emails as material they relied on in reaching their opinions. Specifically, Dr.
Ramos and Geyer testified that in determining testamentary capacity: (1) it’s
important to rely on the observations of family members and the attorneys who
prepared the estate-planning documents, (2) experts in their field routinely do
so, and (3) they considered Exhibits C and D in reaching their opinions. 5 The
trial court acknowledged that Michael’s experts could rely on Exhibits C and D
in reaching their conclusions; however, the court noted that whether those
5 Dr. Ramos wasn’t sure if she had Exhibit C before or after she issued her report and gave her deposition. See Tr. Vol. 1 p. 122.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 27 of 33 emails were admissible was another matter. See Tr. Vol. 2 p. 15 (“The other
aspect, though, goes into the underlying information. Is that something that
automatically comes in or is it admissible, and is that addressed in 703?”). The
court stated it didn’t see “a reason . . . to have those documents before it” and
sustained Douglas’s hearsay objections, thereby preventing Michael from
questioning Dr. Ramos or Geyer about the content of the emails. Id.
[37] Douglas claims that the trial court properly excluded Exhibits C and D because
Evidence Rule 703 “does not speak to the admissibility of hearsay underlying
an expert’s opinion; that must be independently established.” Appellee’s Br. p.
33. Unlike Federal Rule of Evidence 703, Indiana Evidence Rule 703 “does not
expressly provide a vehicle by which the jury can learn of the underlying
material and so decide how much or little weight to afford the opinion.” 13
Robert Lowell Miller, Jr., at § 703.109. 6 To fill this gap, “Indiana courts have
discretion to allow the direct examiner to elicit the otherwise inadmissible facts
or data for the limited purpose of allowing the jury to evaluate the expert’s
opinion, and not as substantive evidence.” Id. “The judge should instruct the
jury as to the limited use to be made of the evidence.” Id. (citing Evid. R. 105).
6 Federal Rule of Evidence 703 provides:
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. (Emphasis added). Indiana Evidence Rule 703 does not contain the last sentence.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 28 of 33 “In exercising this discretion, the judge should balance the probative value of
the evidence for this limited purpose against the risk that the jury will be unable
to follow the limiting instruction and instead consider the inadmissible facts or
data as substantive evidence.” Id. In other words, care should be taken so that
“an expert’s reliance on hearsay [is not] employed simply as a conduit for
placing the [other] person’s statement before the jury.” Id.; see also Schmidt v.
State, 816 N.E.2d 925, 939 (Ind. Ct. App. 2004), reh’g denied, trans. denied.
[38] The trial court erred in not allowing Michael to question Dr. Ramos and Geyer
about the content of Exhibits C and D during direct examination. Evidence
Rule 703 does not independently establish the admissibility of the emails
themselves—that basis is addressed in Section I. What Evidence Rule 703
authorizes, together with Evidence Rule 705, is the elicitation of otherwise
inadmissible facts or data during expert examination for the limited purpose of
helping the factfinder evaluate the expert’s opinion, and not as substantive
evidence of the facts asserted. Applying that rule here, the trial court should
have permitted the questioning. Because this case was tried to the bench, there
was no risk that the court would misuse the content of the emails as substantive
evidence of Alice’s incapacity rather than as material for evaluating why Dr.
Ramos and Geyer reached the conclusions they did. And given that the central
issue is Alice’s mental condition in August 2012, Attorney Carmin’s email
acknowledging Alice’s probable Alzheimer’s diagnosis and Morris’s email
stating that Alice did not understand what she was signing were highly relevant
to those conclusions. The trial court should have allowed Michael to question
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 29 of 33 Dr. Ramos and Geyer about the content of the emails and how much weight
they placed on them in forming their opinions.
[39] We now turn to cross-examination. During his cross-examination of Dr.
Westcott, Michael again moved to admit Exhibits C and D. Michael asked Dr.
Westcott if statements by Morris or Attorney Carmin would be relevant to her
analysis. See Tr. Vol. 3 pp. 10-13. She said they would, if they were not
suffering from any cognitive decline. Michael then asked her if she had
reviewed statements from either person, and she said she had not. Michael then
confirmed that Dr. Westcott hadn’t reviewed Attorney Carmin’s file and thus
had not seen Exhibits C and D. When asked if “statements by a spouse to the
attorney who drafted the estate plan” would have been useful to her, she
responded, “I have everything that I need . . . without those statements.” Id. at
18. Michael stated that he’d “like to be able to share the statements if she’s
[going to] testify that she doesn’t need the statements.” Id. Douglas objected on
hearsay grounds, and the trial court ruled, “I’ll allow you this general
discussion . . . [but] we’re not talking about C & D.” Id. at 19. Michael
maintained that questioning Dr. Westcott about Exhibits C and D was “fair
game” but proceeded without them. Id. Among other things, he posed
hypotheticals to Dr. Westcott, some of which Douglas says touched on the
content of the emails. See id. at 45-58; Appellee’s Br. p. 30.
[40] In a case decided before the Indiana Rules of Evidence were adopted, this
Court found that a trial court did not abuse its discretion in not allowing cross-
examination of an expert about evidence that the expert did not rely upon. See
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 30 of 33 Clouse v. Fielder, 431 N.E.2d 148, 155-56 (Ind. Ct. App. 1982), reh’g denied. No
Indiana case has cited Clouse for this proposition. To the extent Clouse could be
read to establish a categorical rule that an expert can never be cross-examined
about facts or data upon which they didn’t rely, we decline to follow it. This is
because the purpose for direct and cross is the same: helping the factfinder
evaluate the expert’s opinion. Trial courts have discretion to allow the cross-
examiner to elicit otherwise inadmissible facts or data for the limited purpose of
allowing the factfinder to evaluate the expert’s opinion, and not as substantive
evidence. See Walker v. Cuppett, 808 N.E.2d 85, 98-99 (Ind. Ct. App. 2004) (in a
case where an expert relied on medical records in reaching his conclusion,
holding that under Evidence Rule 705, the expert could be cross-examined
about “notations in those medical records that arguably undermined his
opinion, at the very least for impeachment purposes”). Again, there was no risk
that the trial court would misuse the emails. And the emails were particularly
relevant to whether Dr. Westcott’s opinion that Alice had testamentary
capacity in August 2012 is reliable in light of information she never reviewed.
The trial court erred in not allowing Michael to cross-examine Dr. Westcott
about the contents of Exhibits C and D.
III. We vacate the trial court’s order that Alice had testamentary capacity in August 2012 and remand with instructions for the court to consider Exhibits C and D [41] As just explained, the trial court erred in not admitting Exhibits C and D to
allow Michael to use them to attack Attorney Carmin’s credibility. The court
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 31 of 33 also erred in not allowing Michael to refer to the emails during his direct and
cross-examination of the experts to evaluate their opinions. “No error or defect
in any ruling or order or in anything done or omitted by the trial court or by any
of the parties is ground for granting relief or reversal on appeal where its
probable impact, in light of all the evidence in the case, is sufficiently minor so
as not to affect the substantial rights of the parties.” Ind. Appellate Rule 66(A);
see also Abbas, 261 N.E.3d at 248 (applying rule in jury trial). The errors here
were not harmless because the excluded emails went directly to the credibility
of the two witnesses upon which the trial court primarily based its findings—
Attorney Carmin and Dr. Westcott. Accordingly, we vacate the trial court’s
order finding Alice had testamentary capacity in August 2012. On remand, the
trial court shall admit Exhibits C and D, reweigh the evidence, and issue a new
order. If Michael wishes, the trial court shall hold a supplemental evidentiary
hearing before issuing the new order so that he can (1) re-examine Dr. Ramos
and Geyer about the content of Exhibits C and D and the weight they placed on
the emails in forming their opinions and (2) cross-examine Dr. Westcott about
the impact of the emails on her conclusion that Alice had testamentary capacity
in August 2012.
[42] Reversed and remanded.
Mathias, J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 32 of 33 ATTORNEYS FOR APPELLANT Christopher E. Kozak Nicholas J. Bognanno Plews Shadley Racher & Braun LLP Indianapolis, Indiana Carla V. Garino William J. Webster Brianne N. Mershman Webster & Garino LLC Westfield, Indiana
ATTORNEYS FOR APPELLEE Lonnie D. Johnson Justin K. Schwemmer Robert D. Esrock Clendening Johnson & Bohrer, P.C. Bloomington, Indiana
Court of Appeals of Indiana | Opinion 25A-TR-367 | May 8, 2026 Page 33 of 33