(a) When taken. Whenever due to special circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to 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.(b) Notice of taking. The party at whose instance a deposition is to be taken shall give to every 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 or change the place for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination and keep the defendant in the presence of the witness during the examination. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but the defendant's failure, absent good cause shown, to appear after notice and tender of expenses in accordance with subdivision (c) of this rule shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right. (c) Payment of expenses. Whenever a deposition is taken at the instance of the prosecution, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expense of the taking of the deposition, the court may direct that the expenses of travel and subsistence of the defendant and the defendant's attorney for attendance at the examination shall be paid by the prosecutor where its witness is to be deposed and by the state public defender where a defendant's witness is to be deposed.(d) How taken. Subject to such additional conditions as the court may provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that (1) in no event shall a deposition be taken of a defendant without the defendant's consent, and (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The party moving for the deposition shall make available to the other parties or their counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the moving party and to which the other parties would be entitled at trial. Recording devices may be used for the taking of depositions. (e) 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 as substantive evidence if the witness is unavailable, as defined in subdivision (g) of this rule, or if the witness gives testimony at the trial or hearing inconsistent with the witness' deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering party to provide all of it which is relevant to the part offered and any party may offer other parts.(f) Objections to deposition testimony. Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition. (g) Unavailability. "Unavailable" as a witness includes situations in which the deponent: (1) is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the deponent's deposition; or (2) persists in refusing to testify concerning the subject matter of the deponent's deposition despite an order of the judge to do so; or (3) testifies to a lack of memory of the subject matter of the deponent's deposition; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of the deponent's deposition has been unable to procure the deponent's attendance by process or other reasonable means. A deponent is not unavailable as a witness if the deponent's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the deponent's deposition for the purpose of preventing the witness from attending or testifying.(h) 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.Amended December 7, 2006, effective 1/1/2007.