How do you all handle it...if at all...when a defense attorney contacts a witness and subtly (or not so subtly) advises the witness it is not in their best interest to testify?

I have a protective order victim with three assaultive cases up for trial. The defendant is in jail. His attorney called my victim, and according to the victim said, "My client is advising me to tell you that you should not testify." Then she proceeded to tell the witness that the defendant had proof that she was lying and that the defense attorney would "rip her a new one" on the stand.

The other important fact is that on the last trial setting (when no attorney showed up, so a different case went to trial), my victim was calling me crying...she didn't want to testify because he would kill her, or have her killed by his extensive family contacts.

Am I over reacting in thinking that the message from the defendant is a violation of the protective order? Is threatening the witness about what testifying will entail tampering--or is it properly within the bounds of what an attorney can discuss with a potential witness--the complaining witness?

How do you all handle these types of tactics?

Depending on how your protective order is written and exactly what the defense attorney actually said, the defense attorney could be a party to the defendant's violation of the protective order. The key, of course, is determining whether your victim is telling you exactly what was said or what the victim understood the meaning to be. Regardless, at a minimum, it sounds like something that should be brought to the Court's attention since your victim took it to mean that the defendant was threatening her.

Assuming the wording of the attorney's message is accurate, he is arguably tampering. Telling a witness you know they are lying and that you will cross-examine them vigorously is one thing--telling them not to testify is another. Not to split too fine a hair, but his message should be "tell the truth or I will prove you are a liar" not "disobey your subpoena or I will prove you are a liar."

I think you at least have a good faith basis to bring it to the court's attention, even though the facts you've stated fall short of an overt threat, in my opinion. This attorney's intentions are fairly obvious, and the court should not countenance either side encouraging witnesses to absent themselves from court.

Arrange for the witness to call the attorney back and tape record the conversation. That should lead you in one direction or the other.