(a) By Agreement. In criminal cases either party may take the deposition of any witness, other than the defendant, by agreement of the parties and with the assent of the witness, except as prohibited by statute.
(b) Finding by Court. The court in its discretion may permit either party to take the deposition of any witness, except the defendant, in any criminal case upon a finding by a preponderance of the evidence that such deposition is necessary:
(1) To preserve the testimony of any witness who is unlikely to be available for trial due to illness, absence from the jurisdiction, or reluctance to cooperate; or
(2) To ensure a fair trial, avoid surprise, or for other good cause shown.
In determining the necessity, the court shall consider the