(a)When Taken. The deposition of a prospective witness may be taken by either party, upon notice as provided in (b) of this rule and upon motion filed with the court if the court finds by clear and convincing evidence that (1) the witness will not be present to testify at trial; or (2) due to exceptional circumstances, the deposition is necessary to prevent a failure of justice. Any designated book, paper, document, record, recording, or other material not privileged may be subpoenaed at the same time and place of the taking of the deposition. If a witness is committed for failure to give bail or appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness' deposition be taken. After the deposition has been subscribed the court may discharge the witness. In considering a request for the taking of depositions, the court shall grant such motion only if the taking of such deposition will not cause unreasonable delay in the trial of the action and shall apply a presumption against granting a deposition under (a)(2) of this rule if, in regard to that action, the witness has testified before the grand jury or in a prior court proceeding, or has given a recorded statement to a law enforcement agency and the moving party had the opportunity to obtain such a recorded statement.(b)Notice of Taking. The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time.(c)How Taken. The court shall preside over a deposition it orders under (a) of this rule. The deposition shall be conducted in a closed proceeding and recorded in the same manner as other closed court proceedings. This rule does not preclude a party from also recording the deposition by other means approved by the court. In no event shall a deposition be taken of a party defendant without that defendant's consent.(d)Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used by stipulation of the parties or if the witness is unavailable, as defined in section (e) of this rule, or if the witness gives testimony at the trial or hearing inconsistent with the witness' deposition. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it which is relevant to the part offered and any party may offer other parts.(e)Unavailability. A witness is "unavailable" when the witness is: (1) Exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the witness' statement; or(2) Persistent in refusing to testify despite an order of the judge to do so; or(3) Unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity; or(4) Absent from the hearing and beyond the jurisdiction of the court to compel appearance and the proponent of the witness' statement has exercised reasonable diligence but has been unable to procure the witness' attendance.(f)Objections to Admissibility. Objections to receiving in evidence a deposition or part thereof, may be made as provided in civil actions.(g)Deposition by Agreement Not Precluded. Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties with the consent of the court.(h)Joint Defendants. Where persons are jointly tried, the court for good cause shown may refuse to permit the use at the trial of a deposition taken at the instance of a defendant over the objection of any other defendant.Adopted by SCO 4 10/4/1959; amended by SCO 157 effective 2/15/1973; by SCO 639 effective 5/30/1985; amended by SCO 157 effective 2/15/1973; by SCO 1153 effective 7/15/1994; and by SCO 1239 effective 7/15/1996Note to SCO 1239: Criminal Rule 15(a) and (c) were amended by ch. 12 SLA 1995. Sections 1 and 2 of this order are adopted for the sole reason that the legislature has mandated the amendments.