(1) (a) In any criminal action, if the court finds, upon application of the prosecution, that there is substantial risk of physical harm or intimidation of a witness, the court may enter an order that a deposition be taken of that witness' testimony and that the deposition be recorded and preserved on video tape.

(b) For the purposes of this section, "intimidation" means to, directly or indirectly, by oneself or through any other person in one's behalf, make use of any force, violence, restraint, abduction, duress, or forcible or fraudulent device or contrivance, or to inflict or threaten the infliction of any injury, damage, harm, or loss, or in any manner to practice intimidation upon or against any person in order to impede, prevent, or otherwise interfere with the testimony of the witness, or to compel, induce, or prevail upon any witness to give or refrain from giving testimony in any criminal action.

(2) The prosecution shall apply for the order specified in subsection (1) of this section in writing at least three days prior to the taking of the deposition. The defendant shall receive reasonable notice of the taking of the deposition. The defendant shall have a right to be present and represented by counsel at the deposition.

(3) Upon timely receipt of the application, the court shall make a preliminary finding regarding whether, at the time of trial, there is likely to be a substantial risk of physical harm or intimidation of a witness. If the court so finds, it shall order that the deposition be taken, pursuant to rule 15 (d) of the Colorado rules of criminal procedure, and preserved on video tape. The prosecution shall transmit the video tape to the clerk of the court in which the action is pending.