Rule 6.140.Procedures for Use of Hazardous Substance

The rule starts with a deadline. A party intending to offer any hazardous substance into evidence at an evidentiary hearing or trial must file a motion no later than 28 days before that hearing or trial, asking the court for an order regulating the handling, use, and disposition of the substance. The motion comes first, and the substance comes later.

The definition is deliberately wide. A hazardous substance is anything listed in, or later added to, the federal aviation regulations on hazardous substances, anything defined as a hazardous substance by provisions of the United States Code, or anything covered by the federal Controlled Substances Act. It also reaches any potentially dangerous or contaminated substance capable of inflicting death or serious physical injury, whether at once or over the course of time, and any device or implement that carries, contains, or exhibits those characteristics. If the thing you plan to offer could hurt someone in the room, assume the rule reaches it.

What the court can order is equally broad, and it is discretionary. The order may address a jury view or a photograph instead of transporting the substance to the courthouse, appointment of a custodian, appointment of a disposition expert, appointment of a medical expert, the amount to be transported or viewed, the container used for storage, the location and duration of handling and storage, the disposition of the substance afterward, and anything else the court intends to safeguard the public and the evidentiary record.

The consequence of silence is exclusion. Failure to file a timely motion may be grounds for keeping the hazardous substance out of the courthouse. The rule's own 1989 note points to UTCR 1.100 for relief where applying the rule in a particular case would cause hardship or injustice.