We have had two recent cases where defense attorneys have prepared their own Affidavits of Non-Prosecution for the victims. The victims swear:
- they "do not want to prosecute" AND
- they "will avoid a subpoena from the State", and
- "if subpoenaed, they will not appear to testify"

Is this bordering on witness tampering?

Yes, if there is a benefit involved that can be proven, or any type of coercion (Penal Code Section 36.05). The minute you get one of these, you need to contact the victim and find out the circumstances under which the affidavit was procured. Of course, the defense attorney doing this is aiding a person in avoiding process, and a subsequent contempt citation upon the witness's refusal to testify. Certainly something I think the State Bar would view dimly. It may also be a contemptuous act on the part of the attorney which may be punished by the trial court when the witness is held in contempt. After all, under the law of parties if you "aid, solicit, direct....." blah, blah, blah. I, personally, would love to see a court hold counsel in contempt for procuring the affidavit and for the witness's failure to appear or to testify.

Smart defense counsel send a reluctant victim to the DA to plead his or her desire to see charges dropped.

In my time "on the other side" (as a defense attorney) I have assisted dozens of victims in preparing an ANP. It was my document, but their words. The top and bottom of the document had all the legal-ese, but the meat was in their own words: either cut and pasted from an earlier email or hammered out on the keyboard with the witness sitting right there in my office reading over my shoulder while I typed (some folks are not the strongest typists....). But never, never did the document state that the witness would avoid a subpoena and would not appear to testify. There is zealous representation and there is outright stupdity. Sponsoring a legal document that essentially says "I have advised this person to ignore a judge's order and possibly break the law" is just dumb. That affidavit will mean little to the constable who shows up on the victim's doorstep with a writ of attachment come trial day.

Contact the witness and find out the circumstances of the affidavit's creation. If it was pre-made and simply slid across the attorney's desk for them to sign with no input from the witness beforehand, then its not worth the paper its written on (other than an exhibit in a disciplinary hearing). Not that ANP's mean that much anyway....

Some sappy lead-in about "making lemons in to lemonade" comes to mind; but such an affidavit sounds very useful to the prosecution. Lets face it, any such trial you will have to address with the jury the victim's objections to the prosecution but now you have an affidavit: that support's a "forfeiture by wrongdoing" argument to admit hearsay, that is admissible as a statement against interest and explains why the victim is not testifying, and that even though prepared by the defense - does not deny the assault happened.