- Email: [email protected]
Clinical examination of the avian forensic case
Clinical Examination of the Avian Forensic Case Neil A. Forbes, BVetMed, Dip ECAMS, FRCVS
Veterinary forensic medicine presents considerable challenges to the clinician that are different from and additional to those commonly experienced in clinical practice. An ability to perform effectively a clinical forensic examination and to act as an expert witness is greatly assisted by an extensive knowledge of applicable case law. Copyright 9 1998 by W. B. Saunders Company. Key words: Avian, veterinary, forensic, medicolegal.
n m a n y parts of the world there is an increasng awareness of all matters relating to the conservation a n d welfare of animals, in particular those that may be e n d a n g e r e d in their natural habitat. Birds and o t h e r exotic animals frequently b e c o m e the c o n c e r n of the public or of a prosecuting agency, that, in turn, will often n e e d to call on veterinarians for expert opinions on any one of a n u m b e r of possible medicolegal issues. Potential legal cases are not always presented by law e n f o r c e m e n t officers. O n e problem confronting the clinician is the inability to d e t e r m i n e which clinical cases e x a m i n e d in the course of a day could at s o m e stage constitute part of a legal case. Correct p r o c e d u r e s should be used as a matter of course at all times, even in routine daily clinical work. However, b o t h clinical a n d pathological forensic cases typically present a unique challenge to the clinician. T h e full requirements, although not necessarily obvious at all times, go far beyond a standard diagnostic work-up) A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in a court of law by giving an opinion. 2 As an expert, the clinician will list his or h e r qualifications a n d experience at the start o f the testimony. These credentials may be challenged by the lawyer representing the other party. Likewise, the opinion given by the expert is likely to be challenged u n d e r cross-examination; the clinician must be p r e p a r e d for this experience a n d be totally sure of his or her own facts. T h e witness statement and oral evidence may be an account
I
of the clinician's finding or the interpretation of his or her findings. Legal cases should only ever be accepted if the clinician feels c o m p e t e n t to deal with them, is willing to a p p e a r in court, a n d is willing to be challenged by a lawyer who is likely to be briefed by a n o t h e r veterinary e x p e r t (Cooper, this issue). Before one accepts a potential legal case, o n e should ascertain what will be required in terms of time, long-term availability, and any limitation to the fees to which one will be entitled. In some situations, there is a m a x i m u m limit set by the court, which may be less than one is p r e p a r e d to work for. An expert may have two roles in relation to a legal case. T h e first may be to act as an expert adviser to the prosecution or the defense, assisting either party in gathering a n d collecting all necessary evidence to support, defend, or counteract defense in relation to a particular offense that is alleged to have occurred. This role may include assisting in the p r e p a r a t i o n of a prosecution or defense case before going to court, as well as assisting a n d advising in court. Although lawyers may be trained in legal matters, they wilt often require technical advice f r o m an expert in the field. Secondly, the e x p e r t has a separate role in court, where he or she must act as an impartial expert witness, assisting the court by giving evidence, which may comprise factual information or opinion based thereon. T h e e x p e r t witness should avoid b e c o m i n g e n t r e n c h e d while being p r e p a r e d to defend his own findings or opinion. In accepting a clinical forensic case, the clinician must be aware of all of these possible responsibilities. T h e clinical examination of legal cases will
From the Clockhouse Veterinary Hospital, WaUbridge, Stroud, Gloucestershire, England. Address reprint requests to Neil A. Forbes, BVetMed, Dip ECAMS, FRCVS, ClockhouseVeterinaryHospital, Wallbridge,Stroud, GloucestershireGL5 3JD, England. Copyright9 1998 by W. B. Saunders Company. 1055-937X/98/0704-000658. 00/0
Seminars in Avian and Exotic Pet Medicine, Vol 7, No 4 (October), 1998: pp 193-200
| 93
194
Neil A. Forbes
generally occur in one o f the following circumstances. A law e n f o r c e m e n t officer or agency may request an expert's presence at a p r e d e t e r m i n e d place and time, without (for the sake of confidentiality) any prior i n f o r m a t i o n regarding the nature of a n d the circumstances s u r r o u n d i n g the i m p e n d i n g investigation. Such a request will usually involve the attendance of the clinician during the execution of a search warrant. The details of the investigation will be kept secret f r o m all p e r s o n n e l before the event; furthermore, the e n f o r c e m e n t agency will typically not be fully aware of the type, nature, or n u m b e r s of any animals that are likely to be present. If the clinician is p r e p a r e d to be involved in such e n f o r c e m e n t procedures, it is vitally i m p o r t a n t to be properly p r e p a r e d for any situation that may arise. Such examinations are often p e r f o r m e d in an acrimonious situation, in which it would be impossible to return to the site to collect further samples later. A "legal sampling kit" should be p r e p a r e d in advance containing all the necessary containers and materials to facilitate the collection of any samples that may be necessary, a full (including ophthalmologic) clinical examination, as well as the m e a n s to identify p e r m a n e n t l y any animals from which samples are collected. Alternatively, a potential case may be presented to you at a n o r m a l veterinary practice by a law e n f o r c e m e n t officer. An opinion may be requested by the defense, following an investigation or following the examination by an expert acting for the prosecution. Although an expert witness' opinion is evidence in itself, the expert should have some objective, quantifiable, measurable, and recordable evidence to support the case. Finally, one may be requested to p e r f o r m an examination for a private keeper, eg, a "new bird check," which subsequently turns into a legal action against the b r e e d e r or supplier. As far as possible, the clinician should be fully conversant with the relevant legislation before carrying out the examination. Legislation and case law will vary between countries and even states. 3 Being aware of these facts enables the expert to be fully p r e p a r e d and be aware of what samples a n d data are essential. In the author's opinion, it is impossible to carry out a clinical forensic examination or to act effectively as an expert witness without having a working knowledge of the relevant legislation. This legislation covers the i m p o r t and export o f
certain species, a b a n d o n m e n t , cruelty (whether malicious or negligent, eg, failure to provide p r o p e r care and attention), welfare or husb a n d r y considerations, negligence, nuisance, health and safety, environmental legislation, liability, sale of goods, wildlife, transport of animals, and veterinary procedures (Cooper ME, this issue).
Clinical Examination of the Veterinary Forensic Case W h o should be involved? Apart from the clinician, a n u m b e r of o t h e r practice, laboratory, or agency personnel may be involved in any case. It is essential that one considers "continuity" otherwise known as "chain of custody," w h e n handling any evidence. In court, any exhibit or evidence m u s t have a proven source. If the exhibit has passed t h r o u g h a n u m b e r of hands, each person must have signed a f o r m (which should a c c o m p a n y the exhibit at all times) to accept guardianship of the exhibit before signing it again (with time and date) when it is passed on to the next person. If a potential exhibit is b r o u g h t to the veterinary facility for an expert opinion, it should be passed directly to the expert, rather than to a nurse or receptionist. The n u m b e r of people in the chain of custody should be k e p t to a m i n i m u m . Any practice or laboratory staff who sign the custody receipt or make any statement with respect to what they witnessed, found, or r e c o r d e d may in due course be required to attend court to be cross-examined (unless the o t h e r party accepts their evidence). T h e expert should only involve those staff in a case who are certain to be willing a n d available to attend court, if required, at an u n d e f i n e d time in the future. For example, a trainee nurse who will leave to attend college, or a colleague on a short-term contract, should not be involved.
Medical or Contemporaneous Notes Notes m u s t be m a d e at the time of the initial examination. T h e r e is often a considerable delay between examining a case and the time when the case reaches court, or even an appeal hearing at a later date. Even the smallest of points that may seem obvious or u n i m p o r t a n t at the time of the examination must be recorded; such points may be questioned by the other party at a later date,
Clinical Examination of the Avian Forensic Case
and the expert may only be certain of his or her response if that fact was recorded at the time. It is not possible to record too much. These records will be used not only to prepare the witness statement but will also be the only notes normally available from which to refresh the m e m o r y once the expert is in court giving evidence or answering cross-examination. Such notes should be legible and are best made in a hard-cover, b o u n d exercise book, preferably with n u m b e r e d pages. This book may be examined in court by the other party; all notes should be of a suitably professional nature to withstand scrutiny. These notes should record who h a n d e d the expert the exhibit to examine, where it was, and the date and time. All findings (even negative ones) and action taken (eg, sampling, treatment, and future care) must be noted together with any conclusions or opinions based on the examination. If the clinician is participating in collecting evidence, he or she may be requested or required to ask any necessary questions o f the suspect, so that the correct material facts are examined and evidence is p r o d u c e d during the course of the investigation. The questions should only be asked after the person suspected of having committed an offense has been "cautioned" and the questions a n d the answers given should be recorded in the c o n t e m p o r a n e o u s notes. Any notes relating to discussion with the suspect may have to be shown to the suspect at the end of the visit so that the latter can ascertain whether they represent a fair record of the discussions. The suspect should then be asked to sign and date these notes. During the course of an e n f o r c e m e n t procedure, all notes pertaining to the case may be collated by one agency officer, or alternatively they may be collected by each individual personally, indeed the clinician may want to make his or her own notes. Although the recording o f all data has traditionally been d o n e in writing; it is advantageous to now record some of these data by the use of photography, video, or audio recording. In particular, some evidence is better r e c o r d e d by video, eg, a bird suffering from fits, or the degree of tameness of a bird. Any such records taken should be identifiable to the case by the use of identifying case numbers and evidence identification tags as well as a reference to scale, so that a viewer can assess the size of the exhibit irrespective of whether the image has been enlarged or
195
reduced. If the film needs to be developed, advice should be taken from the prosecuting authority as to how this should be d o n e so that continuity is maintained.
Identification All animals that may be the subject of legal cases should be identified with regards to species, breed, where appropriate, sex (male, female, entire, or neutered), age, weight, and special markings. If the species or breed is uncertain (which may often be the case if hybridization is a possibility), the animal should be described as a type, eg, L a n n e r Falcon type bird of prey. It may be possible to confirm or prove the breed or species later. In the meantime, it is better to be less specific but correct than more precise and wrong. An expert who has made an inaccurate statement or j u d g e m e n t in evidence may fare poorly u n d e r cross-examination. The actual identification may be all that is required, for example when offenses may have been committed against legislation implementing the Convention on International Trade in E n d a n g e r e d Species of Wild Fauna and Flora. Charges will c o m m o n l y apply to individual animals, rather than to groups collectively. Before examining any animal, it is essential that the individual animal be identified in a unique m a n n e r that is permanent. Closed metal rings, or 'pits' (microelectronic identification chips), are suitable. If participating in the execution of a search warrant, such methods of identification should be available at the time of the examination, so that the data collected will relate to a specific identifiable exhibit. Any samples removed from an exhibit should also be identified (eg, blood samples) in a unique and indelible manner, such as on the container itself rather than on the lid. No identification should ever be removed from an exhibit. Any inanimate object that is or could be an exhibit should be correctly bagged in a tamper-proof container, sealed, and identified (Munro, this issue).
Examination at Experts' Veterinary Facility As full a clinical examination of the animal as possible should be carried out. In addition to standard clinical data, the veterinarian should
196
NeilA. F~b~
also record other p a r a m e t e r s such as weight, wing tip to wing tip length, carpal length, a n d tarsometatarsal length or other suitable biometrics relevant to the species being examined. H e or she should c o m m e n t on the bird's condition after a standard quantifiable objective protocol. 4 T h e p l u m a g e should be carefully studied, noting any damage, excessive wear, loss of feathers, soiling, fret marks, the stage of the molt, and the presence o f any ectoparasites. In the past, the intensity o f feather coloration, the length of talons, a n d the nervous nature of some birds were considered evidence that they were wild taken birds. Such evidence is no longer likely to be effective and o t h e r material evidence such as the p r e s e n c e of fecal or blood parasites or DNA analysis is likely to be required. Fret marks on the feathers are indicative of a period of stress ( e n d o g e n o u s corticosteroid release) or compromised nutrition at the stage of the molt that relates to the portion of those feathers that were developing at the time. Failure to m o l t (or shed, in the case of m a n y reptiles), is often an indication o f p o o r husbandry, p o o r nutrition, or concurrent disease. Any parasites f o u n d should be identified by an i n d e p e n d e n t qualified parasitologist, because the identity of such parasites may often be o f assistance in a legal case. T h e age of some species can be d e t e r m i n e d by their plumage, because the coloration of the feathers change in subsequent molts, u p to the time when they attain their full adult plumage. 5 However, if feathers are lost between molts, r e p l a c e m e n t feathers will have the a p p e a r a n c e of the subsequent molt. Likewise iris color may vary with age, although this effect is g o v e r n e d by the exposure of the iris to light. If a bird's pupils have b e e n closed for a period of its life (as a consequence o f congenital eyelid abnormalities), the iris may have the a p p e a r a n c e of that of a younger bird. 5 Changes in talon d e v e l o p m e n t can also give clues as to a bird's age. 6 T h e presence of ocular cataracts may indicate metabolic disorders or nutritional deficiencies. T h e sex of a bird may often be d e t e r m i n e d f r o m its plumage and occasionally by iris pigmentation, although on occasions only very slight differences are present. In such cases, g o o d reference books should be r e f e r r e d to at the time of the examination. In some sexually m o n o m o r p h i c species, particularly birds of prey (eg, Falco peregrinus), the sexes have similar plumage, although one sex may be
of a different weight or have a different ulna length or m a x i m u m chordal length. By recording a bird's condition and weight, one may be able to d e t e r m i n e the sex of the bird by referring to standard texts. With falconiform birds o f prey, the female is typically 30% heavier than the male. T h e length and nature of the b e a k and talons should be noted, together with any signs of u n n a t u r a l or excessive wear. T h e a p p e a r a n c e of the feet, particularly the plantar surfaces, should be recorded. T h e dermis should be studied for any signs of previous damage, scarring, surgical incisions, rubs, or abrasions that m i g h t be m a d e by anklets (jesses) or o t h e r traditional m e t h o d s of restraint. All exhibits should be scanned for the presence of passive identification transponders (PIT). All other parts of the b o d y should be fully examined, and all findings (including negative ones) should be recorded. A standard environmental and clinical checklist may be useful to ensure that every aspect is e x a m i n e d a n d recorded. I f the bird is a wild, injured animal, the clinician may be called on to detect f r o m what injuries the bird has previously suffered (eg, by r a d i o g r a p h y to check for previous fractures or the presence of gunshot), as well as assessing the degree of residual incapacity. In England, it is an offense u n d e r wildlife legislation to maintain in captivity a wild injured bird for any period longer than is necessary for its safe r e t u r n to the wild. This consideration may be m a d e initially by clinical examination, then by flight training in a large flight before free-flight testing. Such tests may be p e r f o r m e d at a n o t h e r site and at a later date. An ophthalmologic examination is an integral part o f these examinations. " I m p r i n t i n g " (the e r r o n e o u s acceptance by a y o u n g bird o f an a b n o r m a l e n v i r o n m e n t , food, food provider, or rest mates, as being normal, leading to a typically p e r m a n e n t a b n o r m a l behavior toward its own or o t h e r species [including m a n ] , its environment, rest site choice, or food selection) may often be cited by the defense as a reason for failing to return a bird to the wild; conversely the deliberate imprinting, the causing of any other injury, or the failure to seek p r o p e r care for an injured bird, such that it subsequently c a n n o t be ret u r n e d to the wild may in itself be an offense u n d e r animal welfare legislation. Careful assessm e n t of the level of imprinting is essential, because it may not be immediately apparent. In
Clinical Examination of the Avian Forensic Case
some cases, extensive long-term observation may be necessary. In addition, the signs o f imprinting can vary greatly even between closely related species, so that the clinician may have to call on e x p e r t assistance in regard to this assessment. T h e veterinary expert may be called on to provide an opinion not only in criminal law cases but also in civil law actions in which o n e p e r s o n is claiming c o m p e n s a t i o n f r o m another. T h e clinician's opinion may be sought by the p u r c h a s e r of a bird, in relation to the " a b n o r m a l l y dangerous" predisposition or the i m p r i n t e d condition of a captive-bred bird when it was n o t required to be imprinted. An i m p r i n t e d bird may be abnormally aggressive towards its keeper, d e m o n s t r a t e excessive vocalization that may affect the neighbors or other m e m b e r s of the keeper's family, and may not be inclined to b r e e d with a m a t e of its own species, preferring instead to m a k e advances to its keeper. Some of these cases are straightforward, but consideration must always be given to the age at which the new k e e p e r acquired the bird, and h e n c e at what stage and in whose care the bird was held when any a b n o r m a l behavior was initiated. O n occasion, the clinician's opinion may be sought as to the correct ownership of the bird. If any old feathers have b e e n kept by either party, or any third party, then DNA analysis can be helpful. Sometimes ownership is claimed as a consequence o f the bird's recognition of the k e e p e r or the k e e p e r ' s voice. In such circumstances, an objective decision, based on one's clinical experience, must be made. In view o f the increasing p r o b l e m of avian a n d exotic animal theft, clinicians may be called on to collect a n d store DNA samples for their clients, so that they can be used later if required. Such samples should be taken only f r o m individually identifiable animals, a n d the samples are best lodged with i n d e p e n d e n t companies (eg, University Diagnostics, London, United Kingd o m ) for safe keeping.
19 7
c o n t e m p o r a n e o u s notes outside or in inclement weather conditions on the occasion of such operations may be an a d d e d difficulty that should be considered in advance. T h e standard of aviary construction a n d m a i n t e n a n c e should be assessed, because it may be claimed that certain birds (eg, the bird's parents) had escaped f r o m the aviary, w h e n in fact they were never present because the bird was taken f r o m the wild. A schematic diagram of the site should be made, showing the sizes and siting of all aviaries, which should be s u p p l e m e n t e d with photographs. T h e sites should be searched for the presence of any incubators (artificial or surrogate) as well as any carcasses, including a specific check of any d e e p freezers. In such circumstances, if charges are likely to be b r o u g h t u n d e r which it is claimed that the person is not fit to keep animals then those animals should be r e m o v e d at the time of the raid (subject to a g r e e m e n t with the law e n f o r c e m e n t officers present a n d in accordance with the law). If birds or o t h e r animals are removed f r o m the site, it is essential that the clinician advise on the future welfare of those animals. If possible, they should go to a secret, secure site, where the clinician can m o n i t o r their progress and be responsible for their welfare. T h e loss, escape, or death of any exhibit while in veterinary or police care can considerably weaken a case. In the event o f any such death, it is essential that a t h o r o u g h p o s t m o r t e m examination be p e r f o r m e d to d e t e r m i n e the precise cause of death, which may or may not be attributable to any aspect of the care that it received. In some cases, the clinician may be required to give an opinion on the levels of noise, pests (eg, flies a r o u n d a b r e e d i n g aviary), infection, or nuisance that pervades f r o m a site. Often useful advice can be given at the same time as to how this may be minimized.
Clinical Examination for the Defense Clinical Examination During Execution of Search Warrant All p r o c e d u r e s should be carried out as described above. However, in such circumstances, additional aspects of husbandry, aviary design, buildup of feces, noxious gas buildup, presence of vermin or parasites, food storage, and hygiene should also be noted. T h e possibility of m a k i n g
A clinical examination for the defense should be p e r f o r m e d as close to the time of the initial examination by the prosecutor's expert as possible and, if feasible, u n d e r identical circumstances. T h e expert may be entitled to a share of any samples collected by the prosecution or to any laboratory results originating f r o m those samples. At this stage the d e f e n d a n t may not be aware of what the charges are likely to be, so a
Neil A. Forbes
198
thorough knowledge of the law is helpful. The clinician should collect all necessary data and samples necessary to s u p p o r t any defense that might n e e d to be p r e p a r e d at a later date.
Clinical Examination of a Privately Owned Bird All owners of new birds should be e n c o u r a g e d to seek a full clinical, a n d if necessary, clinicalpathological examination of their new bird. Birds should be screened for pathogens, particularly zoonotic organisms such as Salmonella species, Hepatitis (especially in primates), Cryptosporidium species, Chlamydia psittaci, and Campylobacter species. Detailed records should be maintained, because any abnormalities detected may lead to a dispute between the two parties. T h e presence of blood parasites may indicate that the bird is f r o m the wild, despite being sold as captive bred. The veterinary expert should try to ascertain whether the bird has b e e n legally b r e d in captivity, because his or h e r knowledge of this field is likely to be greater than that of a client and is in a position to advise that the keeping of an illegal bird, even when one is unaware of that fact, may in itself be an offense. T h e expert may be requested to e x a m i n e a privately owned bird if the owner believes there is a potential claim against a third party. For example, the third party may be the a r m e d forces (possible disturbance of breeding birds by low-level c o m b a t flights) or a m a n u f a c t u r e r of chemicals, toxins, household e q u i p m e n t (eg, frying pans), or bird cages. Such actions for " d a m a g e to, loss of birds or reduced p r o d u c t i o n " are fraught with difficulties because the owner is often considering taking legal action against a major international c o m p a n y or organization, which have considerable reserves and a great deal to lose as a consequence of a successful case against them. T h e c o m p a n y in these cases is not just worried a b o u t the result of a single case and the resultant adverse publicity but also because a p r e c e d e n t may be set enabling a large n u m b e r of similar cases. In view of the likely costs that may be incurred, such cases n e e d to be s u p p o r t e d by very strong evidence before lawyers will advise that it is worthwhile proceeding. Sadly, we work in an increasingly litigious society, and a further situation that will f r o m time to time lead to legal cases is o n e in which a
clinical case has not b e e n resolved to the owner's satisfaction a n d the owner decides to take legal action against the veterinarian. In general terms, a veterinarian will only be f o u n d negligent if the court considers that he or she has p e r f o r m e d less well than would be expected from a veterinarian of c o m p a r a b l e experience and reputation. T h e simple fact that a bird dies is not p e r se evidence of negligence, unless it can be shown that another clinician of similar experience could have prevented it f r o m dying. F u r t h e r m o r e , for such a case to be successful, it must be shown that the plaintiff has suffered loss from the alleged negligence. In defending such a case, the most important factor is accurate systematic record keeping of all stages o f the case. Such record keeping should be m a i n t a i n e d as a matter of course for all clinical cases. Not only should written clinical notes be m a d e but laboratory results r e c o r d e d and notes of all discussions and telephone conversations that relate to prognosis, case progress, and estimated and final costs should be made. W h e n dealing with avian and exotic animal cases, the veterinarian is often obliged to use medications that are not licensed or registered for use in that species. In all such cases, the owners should sign a disclaimer that absolves the veterinarian f r o m any u n e x p e c t e d consequences. Consent f o r m s should be used for all animals u n d e r g o i n g anesthesia and for second opinions.
Collecting Diagnostic Samples D e p e n d i n g on the relevant case law, the collection o f samples for diagnostic testing often prove invaluable. Samples vary and include feces, regurgitated food, saliva, a regurgitated pellet, blood, skin scraps, feathers or fur, or surgically r e m o v e d pellets for ballistic examination. 4 T h e carrying box in which a bird was transported to you in should also be examined, because regurgitated food a n d o t h e r samples may be f o u n d in there. It is i m p o r t a n t to check whether the carrying box was clean before the bird was placed in it. Before collecting samples, one should be certain that no offense is b e i n g c o m m i t t e d while one is p e r f o r m i n g t h a t procedure. For example, in British law, it is an offense to carry out any invasive p r o c e d u r e (including the collection of a b l o o d sample) unless it is for the benefit of the bird's health, ie, a veterinary procedure, or is authorized by appropriate legislation. However, if the sampling is
Clinical Examination of the Avian Forensic Case
being p e r f o r m e d subject to a police search warrant, such procedures are permissible, although in some countries or states this may not be the case. T h e collection of blood to s u p p o r t a defense on behalf of a potential d e f e n d a n t may be desirable, but may in itself be an illegal act, as an invasive procedure, which is p e r f o r m e d for a p u r p o s e other than the bird's own welfare. In handling, examining, and collecting samples, one must always consider the welfare of the bird, avoid d a m a g e to the bird or its plumage, a n d be certain that the action is within the law. Hematology, biochemistry, serological titers, radiology, and fecal examination (bacteriology a n d parasitology) may d e t e r m i n e n o t only the level of care a n d health of the animal at the time of the examination but may also reveal information a b o u t the origin of the bird. In cases when neglect may have occurred, samples should be taken immediately (before the bird is fed or p e r m i t t e d to drink) because abnormalities, eg, levels of dehydration or nutritional status, may otherwise return to normal. In particular, the presence of certain blood or fecal parasites may indicate that the bird is wild caught or imported. Radiographs should be correctly labeled with a case number, the date, as well as left and right side. Feathers, skin, or talon samples may be analyzed for heavy metals, levels of radioactivity, or certain poisons that assist in ascertaining the source of the bird or be e x a m i n e d by electronmicroscopy for signs of burns, ballistic, or o t h e r d a m a g e that may have a bearing on the bird's history. Many body tissues, including blood, may be tested by DNA analysis, which can be used to prove species, sex, parentage, or source o f an animal. 7-1~ It may be possible to acquire o t h e r material from related birds or derivatives f r o m the original bird (eg, previously m o l t e d feathers, eggs, carcasses), and these birds may be the p r o p e r t y of the present k e e p e r a n d of o t h e r keepers who may be p r e p a r e d to assist in the investigations. Organic particles from the plumage, or material f r o m any carry boxes in which the bird had previously b e e n transported, may be e x a m i n e d by mass spectrometry, n T h e study of levels of pollutants and o t h e r environmental chemicals may help to confirm the origin of the bird. T h e correct m e t h o d of sample collection, transport, handling, and storage may vary f r o m c o u n t r y to country. In some cases, the o t h e r party may be entitled to have their own tests
199
p e r f o r m e d on any samples that one collected to c o r r o b o r a t e results. In such cases, a single sample should be collected, then divided in two. If samples are being taken f r o m several animals, sterile gloves should be used and changed between birds to ensure that n o contamination occurs between samples. T h e use of protective clothing to prevent c o n t a m i n a t i o n of samples by the h a n d l e r is particularly i m p o r t a n t in cases involving h u m a n contact with the animal. Storage, handling, and any delays before testing should be identical. W h e n considering collecting clinical pathology samples, the veterinarian should check with the laboratory that they have correct qualitycontrol status a n d that they are p r e p a r e d to handle the samples a n d have n o r m a l ranges for this species f r o m their laboratory. If n o r m a l levels are not available, it is advisable either to try a different laboratory or, alternatively, to assess whether additional samples could be provided so that a normal range could be f o r m u l a t e d by that laboratory. All samples should be collected, recorded, and tested in a m a n n e r such that the results are readily repeatable. Any n o r m a l parameters not previously published should be, so that they are m a d e available to o t h e r colleagues faced with similar problems in the future ( C o o p e r and Cooper, this issue). It is preferable to use an i n d e p e n d e n t quality-assured laboratory rather than a practice laboratory. Obtain the laboratory's advice on the correct sampling methods. In some cases, it may be p r u d e n t to send samples to two different laboratories, although the variations between laboratories may h i n d e r rather than assist the court. Samples collected should either be h a n d e d over to the laboratory in person or may be sent by registered courier or mail. In such instances, the samples should be in a t a m p e r - p r o o f container, a n d it should be signed for on dispatch and on receipt; such receipts should be kept in case they are required in court. A complete laboratory submission f o r m should a c c o m p a n y the samples. A chain of custody record for each individual item and any law e n f o r c e m e n t case n u m b e r assigned or evidence seizure tag n u m b e r s m u s t be included in the record. A cover letter should give a brief description of the case history a n d a t e l e p h o n e contact n u m b e r for the laboratory to use should they require further details should also be supplied. T h e laboratory must be aware that the sample
200
Neil A. Forbes
relates to a legal case b e c a u s e t h e y m a y o p t to r u n q u a l i t y - c o n t r o l s e r a in t h e s a m e b a t c h as t h e legal s a m p l e s . W h e n results a r e available, t h e y s h o u l d b e c o m p a r e d with t h e l a b o r a t o r y ' s norm a l results f o r t h a t species. W h e n e x a m i n i n g b i r d s t h a t have b e e n shot, any p e l l e t s t h a t a r e l o d g e d in t h e skin, p l u m a g e , or within the body should be collected using plastic o r p a d d e d f o r c e p s (so as n o t to d a m a g e t h e m b e f o r e ballistic c o m p a r i s o n ) a n d s h o u l d b e w r a p p e d i n d i v i d u a l l y in p a d d i n g in a s e a l e d r i g i d tamper-proof container and labeled accordingly ( M u n r o , this issue). S u c h p e l l e t s s h o u l d b e h a n d e d d i r e c t l y to t h e p r o s e c u t i o n a g e n c y ofricer in c h a r g e o f t h e case.
Storing Samples N o s a m p l e s , m a t e r i a l s , o r e x h i b i t s o f any k i n d s h o u l d b e d i s c a r d e d . All s a m p l e s s h o u l d all b e c o r r e c t l y s t o r e d , in a m a n n e r s u c h t h a t they a r e preserved. They should be identified, be secure ( f r o m all u n a u t h o r i z e d p e r s o n n e l ) , a n d b e tamper proos Particular care must be paid when s a m p l e s o r carcasses a r e s t o r e d in d e e p freezers t o g e t h e r with o t h e r n o r m a l p r a c t i c e clinical waste t h a t is d e s t i n e d f o r i n c i n e r a t i o n . A d h e s i v e labels c o m m o n l y c o m e loose, a n d tags m a y b e r i p p e d off a c c i d e n t a l l y w h e n k e p t with o t h e r m a t e r i a l s in a freezer. W h e n e v e r possible, a s e p a r a t e f r e e z e r s h o u l d b e u s e d ( M u n r o , this issue). N o r m a l l y all e x h i b i t s a n d e v i d e n c e m u s t be retained until the time of the court appearance and any subsequent appeal hearing. In cases t h a t r e l a t e to w i l d - c a u g h t birds, it m a y b e p r u d e n t to r e l e a s e t h e m b a c k i n t o t h e wild, in a c o n t r o l l e d a n d m o n i t o r e d m a n n e r as s o o n as all n e c e s s a r y d a t a have b e e n r e c o r d e d . S u c h b i r d s can b e e x p e n s i v e to m a i n t a i n in captivity f o r prolonged periods before a hearing and many also suffer as a r e s u l t o f p r o l o n g e d c o n f i n e m e n t .
T h e w o r s t p o s s i b l e s c e n a r i o in s u c h cases is t h a t the d e f e n d a n t m a y m a k e a claim f o r t h e value o f the birds, if t h e r e s u l t o f t h e case is n o t a u t o m a t i c f o r f e i t u r e . I n m o s t cases, t h e value is less t h a n t h e cost o f k e e p i n g t h e m in captivity. W h e n d e a l i n g with illegally o b t a i n e d b i r d s , t h e k e e p i n g o f t h e m o r any derivatives o f t h e m m a y in itself b e a n offense, e v e n w h e n t h e v e t e r i n a r i a n is k e e p i n g t h e m at t h e r e q u e s t o f the a u t h o r i t i e s . This m a t t e r s h o u l d b e investig a t e d a n d a n y r e l e v a n t licenses o r a p p r o p r i a t e written exemptions from such requirements should be obtained.
References 1. Stroud RK: Wildlife forensics: A new and challenging role for the comparative pathologist. Comp Pathol Bull 97:1-2, 1995 2. Feder HA: Succeeding as an Expert Witness. New York, NY, Van Nostrand Reinhold, 1991 3. Cooper ME: An Introduction to Animal Law. London, UK, Academic Press, 1987 4. CooperJE, Cooper ME: Legal cases involving birds: The role of the veterinary surgeon. Vet Rec 129:505-507, 1991 5. H e i d e n r e i c h M: Birds of Prey--Medicine and Management. Oxford, UK, Blackwell Science, 1997, pp 231-957 6. Wyllie I: Guide to Age and Sex in British Birds of Prey. Monkswood, England, Institute of Terrestrial Ecology, 1993 7. Wolfes R, Mathe J, Seitz A: Forensics of birds of prey by DNA fingerprinting with P-labelled oligonucleotide probes. Electrophoresis 12:175-180, 1991 8. Rychlik I, Kubicek O, HolcakV, et al: DNA fingerprinting in Falconidae.Vet Med (Prague) 39:111-116, 1994 9. Wetton J: Genetic studies of the Saker falcon, in 1995 Middle East Falcon Research Group, Proceedings of the Specialist Workshop. Abu Dhabi, United Arab Emirates, National Avian Research Council, 1995, pp 169-178 10. Wink M: Molecular phylogeny of the saker and other desert falcons, in 1995 Middle East Falcon Research Group, Proceedings of the Specialist Workshop. Abu Dhabi, United Arab Emirates, National Avian Research Council, 1995, pp 178-202 11. Alford A: Environmental applications of mass spectrometry. Biomed Mass Spectrom 5:259-986, 1978
Veterinary forensic medicine presents considerable challenges to the clinician that are different from and additional to those commonly experienced in clinical practice. An ability to perform effectively a clinical forensic examination and to act as an expert witness is greatly assisted by an extensive knowledge of applicable case law. Copyright 9 1998 by W. B. Saunders Company. Key words: Avian, veterinary, forensic, medicolegal.
n m a n y parts of the world there is an increasng awareness of all matters relating to the conservation a n d welfare of animals, in particular those that may be e n d a n g e r e d in their natural habitat. Birds and o t h e r exotic animals frequently b e c o m e the c o n c e r n of the public or of a prosecuting agency, that, in turn, will often n e e d to call on veterinarians for expert opinions on any one of a n u m b e r of possible medicolegal issues. Potential legal cases are not always presented by law e n f o r c e m e n t officers. O n e problem confronting the clinician is the inability to d e t e r m i n e which clinical cases e x a m i n e d in the course of a day could at s o m e stage constitute part of a legal case. Correct p r o c e d u r e s should be used as a matter of course at all times, even in routine daily clinical work. However, b o t h clinical a n d pathological forensic cases typically present a unique challenge to the clinician. T h e full requirements, although not necessarily obvious at all times, go far beyond a standard diagnostic work-up) A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in a court of law by giving an opinion. 2 As an expert, the clinician will list his or h e r qualifications a n d experience at the start o f the testimony. These credentials may be challenged by the lawyer representing the other party. Likewise, the opinion given by the expert is likely to be challenged u n d e r cross-examination; the clinician must be p r e p a r e d for this experience a n d be totally sure of his or her own facts. T h e witness statement and oral evidence may be an account
I
of the clinician's finding or the interpretation of his or her findings. Legal cases should only ever be accepted if the clinician feels c o m p e t e n t to deal with them, is willing to a p p e a r in court, a n d is willing to be challenged by a lawyer who is likely to be briefed by a n o t h e r veterinary e x p e r t (Cooper, this issue). Before one accepts a potential legal case, o n e should ascertain what will be required in terms of time, long-term availability, and any limitation to the fees to which one will be entitled. In some situations, there is a m a x i m u m limit set by the court, which may be less than one is p r e p a r e d to work for. An expert may have two roles in relation to a legal case. T h e first may be to act as an expert adviser to the prosecution or the defense, assisting either party in gathering a n d collecting all necessary evidence to support, defend, or counteract defense in relation to a particular offense that is alleged to have occurred. This role may include assisting in the p r e p a r a t i o n of a prosecution or defense case before going to court, as well as assisting a n d advising in court. Although lawyers may be trained in legal matters, they wilt often require technical advice f r o m an expert in the field. Secondly, the e x p e r t has a separate role in court, where he or she must act as an impartial expert witness, assisting the court by giving evidence, which may comprise factual information or opinion based thereon. T h e e x p e r t witness should avoid b e c o m i n g e n t r e n c h e d while being p r e p a r e d to defend his own findings or opinion. In accepting a clinical forensic case, the clinician must be aware of all of these possible responsibilities. T h e clinical examination of legal cases will
From the Clockhouse Veterinary Hospital, WaUbridge, Stroud, Gloucestershire, England. Address reprint requests to Neil A. Forbes, BVetMed, Dip ECAMS, FRCVS, ClockhouseVeterinaryHospital, Wallbridge,Stroud, GloucestershireGL5 3JD, England. Copyright9 1998 by W. B. Saunders Company. 1055-937X/98/0704-000658. 00/0
Seminars in Avian and Exotic Pet Medicine, Vol 7, No 4 (October), 1998: pp 193-200
| 93
194
Neil A. Forbes
generally occur in one o f the following circumstances. A law e n f o r c e m e n t officer or agency may request an expert's presence at a p r e d e t e r m i n e d place and time, without (for the sake of confidentiality) any prior i n f o r m a t i o n regarding the nature of a n d the circumstances s u r r o u n d i n g the i m p e n d i n g investigation. Such a request will usually involve the attendance of the clinician during the execution of a search warrant. The details of the investigation will be kept secret f r o m all p e r s o n n e l before the event; furthermore, the e n f o r c e m e n t agency will typically not be fully aware of the type, nature, or n u m b e r s of any animals that are likely to be present. If the clinician is p r e p a r e d to be involved in such e n f o r c e m e n t procedures, it is vitally i m p o r t a n t to be properly p r e p a r e d for any situation that may arise. Such examinations are often p e r f o r m e d in an acrimonious situation, in which it would be impossible to return to the site to collect further samples later. A "legal sampling kit" should be p r e p a r e d in advance containing all the necessary containers and materials to facilitate the collection of any samples that may be necessary, a full (including ophthalmologic) clinical examination, as well as the m e a n s to identify p e r m a n e n t l y any animals from which samples are collected. Alternatively, a potential case may be presented to you at a n o r m a l veterinary practice by a law e n f o r c e m e n t officer. An opinion may be requested by the defense, following an investigation or following the examination by an expert acting for the prosecution. Although an expert witness' opinion is evidence in itself, the expert should have some objective, quantifiable, measurable, and recordable evidence to support the case. Finally, one may be requested to p e r f o r m an examination for a private keeper, eg, a "new bird check," which subsequently turns into a legal action against the b r e e d e r or supplier. As far as possible, the clinician should be fully conversant with the relevant legislation before carrying out the examination. Legislation and case law will vary between countries and even states. 3 Being aware of these facts enables the expert to be fully p r e p a r e d and be aware of what samples a n d data are essential. In the author's opinion, it is impossible to carry out a clinical forensic examination or to act effectively as an expert witness without having a working knowledge of the relevant legislation. This legislation covers the i m p o r t and export o f
certain species, a b a n d o n m e n t , cruelty (whether malicious or negligent, eg, failure to provide p r o p e r care and attention), welfare or husb a n d r y considerations, negligence, nuisance, health and safety, environmental legislation, liability, sale of goods, wildlife, transport of animals, and veterinary procedures (Cooper ME, this issue).
Clinical Examination of the Veterinary Forensic Case W h o should be involved? Apart from the clinician, a n u m b e r of o t h e r practice, laboratory, or agency personnel may be involved in any case. It is essential that one considers "continuity" otherwise known as "chain of custody," w h e n handling any evidence. In court, any exhibit or evidence m u s t have a proven source. If the exhibit has passed t h r o u g h a n u m b e r of hands, each person must have signed a f o r m (which should a c c o m p a n y the exhibit at all times) to accept guardianship of the exhibit before signing it again (with time and date) when it is passed on to the next person. If a potential exhibit is b r o u g h t to the veterinary facility for an expert opinion, it should be passed directly to the expert, rather than to a nurse or receptionist. The n u m b e r of people in the chain of custody should be k e p t to a m i n i m u m . Any practice or laboratory staff who sign the custody receipt or make any statement with respect to what they witnessed, found, or r e c o r d e d may in due course be required to attend court to be cross-examined (unless the o t h e r party accepts their evidence). T h e expert should only involve those staff in a case who are certain to be willing a n d available to attend court, if required, at an u n d e f i n e d time in the future. For example, a trainee nurse who will leave to attend college, or a colleague on a short-term contract, should not be involved.
Medical or Contemporaneous Notes Notes m u s t be m a d e at the time of the initial examination. T h e r e is often a considerable delay between examining a case and the time when the case reaches court, or even an appeal hearing at a later date. Even the smallest of points that may seem obvious or u n i m p o r t a n t at the time of the examination must be recorded; such points may be questioned by the other party at a later date,
Clinical Examination of the Avian Forensic Case
and the expert may only be certain of his or her response if that fact was recorded at the time. It is not possible to record too much. These records will be used not only to prepare the witness statement but will also be the only notes normally available from which to refresh the m e m o r y once the expert is in court giving evidence or answering cross-examination. Such notes should be legible and are best made in a hard-cover, b o u n d exercise book, preferably with n u m b e r e d pages. This book may be examined in court by the other party; all notes should be of a suitably professional nature to withstand scrutiny. These notes should record who h a n d e d the expert the exhibit to examine, where it was, and the date and time. All findings (even negative ones) and action taken (eg, sampling, treatment, and future care) must be noted together with any conclusions or opinions based on the examination. If the clinician is participating in collecting evidence, he or she may be requested or required to ask any necessary questions o f the suspect, so that the correct material facts are examined and evidence is p r o d u c e d during the course of the investigation. The questions should only be asked after the person suspected of having committed an offense has been "cautioned" and the questions a n d the answers given should be recorded in the c o n t e m p o r a n e o u s notes. Any notes relating to discussion with the suspect may have to be shown to the suspect at the end of the visit so that the latter can ascertain whether they represent a fair record of the discussions. The suspect should then be asked to sign and date these notes. During the course of an e n f o r c e m e n t procedure, all notes pertaining to the case may be collated by one agency officer, or alternatively they may be collected by each individual personally, indeed the clinician may want to make his or her own notes. Although the recording o f all data has traditionally been d o n e in writing; it is advantageous to now record some of these data by the use of photography, video, or audio recording. In particular, some evidence is better r e c o r d e d by video, eg, a bird suffering from fits, or the degree of tameness of a bird. Any such records taken should be identifiable to the case by the use of identifying case numbers and evidence identification tags as well as a reference to scale, so that a viewer can assess the size of the exhibit irrespective of whether the image has been enlarged or
195
reduced. If the film needs to be developed, advice should be taken from the prosecuting authority as to how this should be d o n e so that continuity is maintained.
Identification All animals that may be the subject of legal cases should be identified with regards to species, breed, where appropriate, sex (male, female, entire, or neutered), age, weight, and special markings. If the species or breed is uncertain (which may often be the case if hybridization is a possibility), the animal should be described as a type, eg, L a n n e r Falcon type bird of prey. It may be possible to confirm or prove the breed or species later. In the meantime, it is better to be less specific but correct than more precise and wrong. An expert who has made an inaccurate statement or j u d g e m e n t in evidence may fare poorly u n d e r cross-examination. The actual identification may be all that is required, for example when offenses may have been committed against legislation implementing the Convention on International Trade in E n d a n g e r e d Species of Wild Fauna and Flora. Charges will c o m m o n l y apply to individual animals, rather than to groups collectively. Before examining any animal, it is essential that the individual animal be identified in a unique m a n n e r that is permanent. Closed metal rings, or 'pits' (microelectronic identification chips), are suitable. If participating in the execution of a search warrant, such methods of identification should be available at the time of the examination, so that the data collected will relate to a specific identifiable exhibit. Any samples removed from an exhibit should also be identified (eg, blood samples) in a unique and indelible manner, such as on the container itself rather than on the lid. No identification should ever be removed from an exhibit. Any inanimate object that is or could be an exhibit should be correctly bagged in a tamper-proof container, sealed, and identified (Munro, this issue).
Examination at Experts' Veterinary Facility As full a clinical examination of the animal as possible should be carried out. In addition to standard clinical data, the veterinarian should
196
NeilA. F~b~
also record other p a r a m e t e r s such as weight, wing tip to wing tip length, carpal length, a n d tarsometatarsal length or other suitable biometrics relevant to the species being examined. H e or she should c o m m e n t on the bird's condition after a standard quantifiable objective protocol. 4 T h e p l u m a g e should be carefully studied, noting any damage, excessive wear, loss of feathers, soiling, fret marks, the stage of the molt, and the presence o f any ectoparasites. In the past, the intensity o f feather coloration, the length of talons, a n d the nervous nature of some birds were considered evidence that they were wild taken birds. Such evidence is no longer likely to be effective and o t h e r material evidence such as the p r e s e n c e of fecal or blood parasites or DNA analysis is likely to be required. Fret marks on the feathers are indicative of a period of stress ( e n d o g e n o u s corticosteroid release) or compromised nutrition at the stage of the molt that relates to the portion of those feathers that were developing at the time. Failure to m o l t (or shed, in the case of m a n y reptiles), is often an indication o f p o o r husbandry, p o o r nutrition, or concurrent disease. Any parasites f o u n d should be identified by an i n d e p e n d e n t qualified parasitologist, because the identity of such parasites may often be o f assistance in a legal case. T h e age of some species can be d e t e r m i n e d by their plumage, because the coloration of the feathers change in subsequent molts, u p to the time when they attain their full adult plumage. 5 However, if feathers are lost between molts, r e p l a c e m e n t feathers will have the a p p e a r a n c e of the subsequent molt. Likewise iris color may vary with age, although this effect is g o v e r n e d by the exposure of the iris to light. If a bird's pupils have b e e n closed for a period of its life (as a consequence o f congenital eyelid abnormalities), the iris may have the a p p e a r a n c e of that of a younger bird. 5 Changes in talon d e v e l o p m e n t can also give clues as to a bird's age. 6 T h e presence of ocular cataracts may indicate metabolic disorders or nutritional deficiencies. T h e sex of a bird may often be d e t e r m i n e d f r o m its plumage and occasionally by iris pigmentation, although on occasions only very slight differences are present. In such cases, g o o d reference books should be r e f e r r e d to at the time of the examination. In some sexually m o n o m o r p h i c species, particularly birds of prey (eg, Falco peregrinus), the sexes have similar plumage, although one sex may be
of a different weight or have a different ulna length or m a x i m u m chordal length. By recording a bird's condition and weight, one may be able to d e t e r m i n e the sex of the bird by referring to standard texts. With falconiform birds o f prey, the female is typically 30% heavier than the male. T h e length and nature of the b e a k and talons should be noted, together with any signs of u n n a t u r a l or excessive wear. T h e a p p e a r a n c e of the feet, particularly the plantar surfaces, should be recorded. T h e dermis should be studied for any signs of previous damage, scarring, surgical incisions, rubs, or abrasions that m i g h t be m a d e by anklets (jesses) or o t h e r traditional m e t h o d s of restraint. All exhibits should be scanned for the presence of passive identification transponders (PIT). All other parts of the b o d y should be fully examined, and all findings (including negative ones) should be recorded. A standard environmental and clinical checklist may be useful to ensure that every aspect is e x a m i n e d a n d recorded. I f the bird is a wild, injured animal, the clinician may be called on to detect f r o m what injuries the bird has previously suffered (eg, by r a d i o g r a p h y to check for previous fractures or the presence of gunshot), as well as assessing the degree of residual incapacity. In England, it is an offense u n d e r wildlife legislation to maintain in captivity a wild injured bird for any period longer than is necessary for its safe r e t u r n to the wild. This consideration may be m a d e initially by clinical examination, then by flight training in a large flight before free-flight testing. Such tests may be p e r f o r m e d at a n o t h e r site and at a later date. An ophthalmologic examination is an integral part o f these examinations. " I m p r i n t i n g " (the e r r o n e o u s acceptance by a y o u n g bird o f an a b n o r m a l e n v i r o n m e n t , food, food provider, or rest mates, as being normal, leading to a typically p e r m a n e n t a b n o r m a l behavior toward its own or o t h e r species [including m a n ] , its environment, rest site choice, or food selection) may often be cited by the defense as a reason for failing to return a bird to the wild; conversely the deliberate imprinting, the causing of any other injury, or the failure to seek p r o p e r care for an injured bird, such that it subsequently c a n n o t be ret u r n e d to the wild may in itself be an offense u n d e r animal welfare legislation. Careful assessm e n t of the level of imprinting is essential, because it may not be immediately apparent. In
Clinical Examination of the Avian Forensic Case
some cases, extensive long-term observation may be necessary. In addition, the signs o f imprinting can vary greatly even between closely related species, so that the clinician may have to call on e x p e r t assistance in regard to this assessment. T h e veterinary expert may be called on to provide an opinion not only in criminal law cases but also in civil law actions in which o n e p e r s o n is claiming c o m p e n s a t i o n f r o m another. T h e clinician's opinion may be sought by the p u r c h a s e r of a bird, in relation to the " a b n o r m a l l y dangerous" predisposition or the i m p r i n t e d condition of a captive-bred bird when it was n o t required to be imprinted. An i m p r i n t e d bird may be abnormally aggressive towards its keeper, d e m o n s t r a t e excessive vocalization that may affect the neighbors or other m e m b e r s of the keeper's family, and may not be inclined to b r e e d with a m a t e of its own species, preferring instead to m a k e advances to its keeper. Some of these cases are straightforward, but consideration must always be given to the age at which the new k e e p e r acquired the bird, and h e n c e at what stage and in whose care the bird was held when any a b n o r m a l behavior was initiated. O n occasion, the clinician's opinion may be sought as to the correct ownership of the bird. If any old feathers have b e e n kept by either party, or any third party, then DNA analysis can be helpful. Sometimes ownership is claimed as a consequence o f the bird's recognition of the k e e p e r or the k e e p e r ' s voice. In such circumstances, an objective decision, based on one's clinical experience, must be made. In view o f the increasing p r o b l e m of avian a n d exotic animal theft, clinicians may be called on to collect a n d store DNA samples for their clients, so that they can be used later if required. Such samples should be taken only f r o m individually identifiable animals, a n d the samples are best lodged with i n d e p e n d e n t companies (eg, University Diagnostics, London, United Kingd o m ) for safe keeping.
19 7
c o n t e m p o r a n e o u s notes outside or in inclement weather conditions on the occasion of such operations may be an a d d e d difficulty that should be considered in advance. T h e standard of aviary construction a n d m a i n t e n a n c e should be assessed, because it may be claimed that certain birds (eg, the bird's parents) had escaped f r o m the aviary, w h e n in fact they were never present because the bird was taken f r o m the wild. A schematic diagram of the site should be made, showing the sizes and siting of all aviaries, which should be s u p p l e m e n t e d with photographs. T h e sites should be searched for the presence of any incubators (artificial or surrogate) as well as any carcasses, including a specific check of any d e e p freezers. In such circumstances, if charges are likely to be b r o u g h t u n d e r which it is claimed that the person is not fit to keep animals then those animals should be r e m o v e d at the time of the raid (subject to a g r e e m e n t with the law e n f o r c e m e n t officers present a n d in accordance with the law). If birds or o t h e r animals are removed f r o m the site, it is essential that the clinician advise on the future welfare of those animals. If possible, they should go to a secret, secure site, where the clinician can m o n i t o r their progress and be responsible for their welfare. T h e loss, escape, or death of any exhibit while in veterinary or police care can considerably weaken a case. In the event o f any such death, it is essential that a t h o r o u g h p o s t m o r t e m examination be p e r f o r m e d to d e t e r m i n e the precise cause of death, which may or may not be attributable to any aspect of the care that it received. In some cases, the clinician may be required to give an opinion on the levels of noise, pests (eg, flies a r o u n d a b r e e d i n g aviary), infection, or nuisance that pervades f r o m a site. Often useful advice can be given at the same time as to how this may be minimized.
Clinical Examination for the Defense Clinical Examination During Execution of Search Warrant All p r o c e d u r e s should be carried out as described above. However, in such circumstances, additional aspects of husbandry, aviary design, buildup of feces, noxious gas buildup, presence of vermin or parasites, food storage, and hygiene should also be noted. T h e possibility of m a k i n g
A clinical examination for the defense should be p e r f o r m e d as close to the time of the initial examination by the prosecutor's expert as possible and, if feasible, u n d e r identical circumstances. T h e expert may be entitled to a share of any samples collected by the prosecution or to any laboratory results originating f r o m those samples. At this stage the d e f e n d a n t may not be aware of what the charges are likely to be, so a
Neil A. Forbes
198
thorough knowledge of the law is helpful. The clinician should collect all necessary data and samples necessary to s u p p o r t any defense that might n e e d to be p r e p a r e d at a later date.
Clinical Examination of a Privately Owned Bird All owners of new birds should be e n c o u r a g e d to seek a full clinical, a n d if necessary, clinicalpathological examination of their new bird. Birds should be screened for pathogens, particularly zoonotic organisms such as Salmonella species, Hepatitis (especially in primates), Cryptosporidium species, Chlamydia psittaci, and Campylobacter species. Detailed records should be maintained, because any abnormalities detected may lead to a dispute between the two parties. T h e presence of blood parasites may indicate that the bird is f r o m the wild, despite being sold as captive bred. The veterinary expert should try to ascertain whether the bird has b e e n legally b r e d in captivity, because his or h e r knowledge of this field is likely to be greater than that of a client and is in a position to advise that the keeping of an illegal bird, even when one is unaware of that fact, may in itself be an offense. T h e expert may be requested to e x a m i n e a privately owned bird if the owner believes there is a potential claim against a third party. For example, the third party may be the a r m e d forces (possible disturbance of breeding birds by low-level c o m b a t flights) or a m a n u f a c t u r e r of chemicals, toxins, household e q u i p m e n t (eg, frying pans), or bird cages. Such actions for " d a m a g e to, loss of birds or reduced p r o d u c t i o n " are fraught with difficulties because the owner is often considering taking legal action against a major international c o m p a n y or organization, which have considerable reserves and a great deal to lose as a consequence of a successful case against them. T h e c o m p a n y in these cases is not just worried a b o u t the result of a single case and the resultant adverse publicity but also because a p r e c e d e n t may be set enabling a large n u m b e r of similar cases. In view of the likely costs that may be incurred, such cases n e e d to be s u p p o r t e d by very strong evidence before lawyers will advise that it is worthwhile proceeding. Sadly, we work in an increasingly litigious society, and a further situation that will f r o m time to time lead to legal cases is o n e in which a
clinical case has not b e e n resolved to the owner's satisfaction a n d the owner decides to take legal action against the veterinarian. In general terms, a veterinarian will only be f o u n d negligent if the court considers that he or she has p e r f o r m e d less well than would be expected from a veterinarian of c o m p a r a b l e experience and reputation. T h e simple fact that a bird dies is not p e r se evidence of negligence, unless it can be shown that another clinician of similar experience could have prevented it f r o m dying. F u r t h e r m o r e , for such a case to be successful, it must be shown that the plaintiff has suffered loss from the alleged negligence. In defending such a case, the most important factor is accurate systematic record keeping of all stages o f the case. Such record keeping should be m a i n t a i n e d as a matter of course for all clinical cases. Not only should written clinical notes be m a d e but laboratory results r e c o r d e d and notes of all discussions and telephone conversations that relate to prognosis, case progress, and estimated and final costs should be made. W h e n dealing with avian and exotic animal cases, the veterinarian is often obliged to use medications that are not licensed or registered for use in that species. In all such cases, the owners should sign a disclaimer that absolves the veterinarian f r o m any u n e x p e c t e d consequences. Consent f o r m s should be used for all animals u n d e r g o i n g anesthesia and for second opinions.
Collecting Diagnostic Samples D e p e n d i n g on the relevant case law, the collection o f samples for diagnostic testing often prove invaluable. Samples vary and include feces, regurgitated food, saliva, a regurgitated pellet, blood, skin scraps, feathers or fur, or surgically r e m o v e d pellets for ballistic examination. 4 T h e carrying box in which a bird was transported to you in should also be examined, because regurgitated food a n d o t h e r samples may be f o u n d in there. It is i m p o r t a n t to check whether the carrying box was clean before the bird was placed in it. Before collecting samples, one should be certain that no offense is b e i n g c o m m i t t e d while one is p e r f o r m i n g t h a t procedure. For example, in British law, it is an offense to carry out any invasive p r o c e d u r e (including the collection of a b l o o d sample) unless it is for the benefit of the bird's health, ie, a veterinary procedure, or is authorized by appropriate legislation. However, if the sampling is
Clinical Examination of the Avian Forensic Case
being p e r f o r m e d subject to a police search warrant, such procedures are permissible, although in some countries or states this may not be the case. T h e collection of blood to s u p p o r t a defense on behalf of a potential d e f e n d a n t may be desirable, but may in itself be an illegal act, as an invasive procedure, which is p e r f o r m e d for a p u r p o s e other than the bird's own welfare. In handling, examining, and collecting samples, one must always consider the welfare of the bird, avoid d a m a g e to the bird or its plumage, a n d be certain that the action is within the law. Hematology, biochemistry, serological titers, radiology, and fecal examination (bacteriology a n d parasitology) may d e t e r m i n e n o t only the level of care a n d health of the animal at the time of the examination but may also reveal information a b o u t the origin of the bird. In cases when neglect may have occurred, samples should be taken immediately (before the bird is fed or p e r m i t t e d to drink) because abnormalities, eg, levels of dehydration or nutritional status, may otherwise return to normal. In particular, the presence of certain blood or fecal parasites may indicate that the bird is wild caught or imported. Radiographs should be correctly labeled with a case number, the date, as well as left and right side. Feathers, skin, or talon samples may be analyzed for heavy metals, levels of radioactivity, or certain poisons that assist in ascertaining the source of the bird or be e x a m i n e d by electronmicroscopy for signs of burns, ballistic, or o t h e r d a m a g e that may have a bearing on the bird's history. Many body tissues, including blood, may be tested by DNA analysis, which can be used to prove species, sex, parentage, or source o f an animal. 7-1~ It may be possible to acquire o t h e r material from related birds or derivatives f r o m the original bird (eg, previously m o l t e d feathers, eggs, carcasses), and these birds may be the p r o p e r t y of the present k e e p e r a n d of o t h e r keepers who may be p r e p a r e d to assist in the investigations. Organic particles from the plumage, or material f r o m any carry boxes in which the bird had previously b e e n transported, may be e x a m i n e d by mass spectrometry, n T h e study of levels of pollutants and o t h e r environmental chemicals may help to confirm the origin of the bird. T h e correct m e t h o d of sample collection, transport, handling, and storage may vary f r o m c o u n t r y to country. In some cases, the o t h e r party may be entitled to have their own tests
199
p e r f o r m e d on any samples that one collected to c o r r o b o r a t e results. In such cases, a single sample should be collected, then divided in two. If samples are being taken f r o m several animals, sterile gloves should be used and changed between birds to ensure that n o contamination occurs between samples. T h e use of protective clothing to prevent c o n t a m i n a t i o n of samples by the h a n d l e r is particularly i m p o r t a n t in cases involving h u m a n contact with the animal. Storage, handling, and any delays before testing should be identical. W h e n considering collecting clinical pathology samples, the veterinarian should check with the laboratory that they have correct qualitycontrol status a n d that they are p r e p a r e d to handle the samples a n d have n o r m a l ranges for this species f r o m their laboratory. If n o r m a l levels are not available, it is advisable either to try a different laboratory or, alternatively, to assess whether additional samples could be provided so that a normal range could be f o r m u l a t e d by that laboratory. All samples should be collected, recorded, and tested in a m a n n e r such that the results are readily repeatable. Any n o r m a l parameters not previously published should be, so that they are m a d e available to o t h e r colleagues faced with similar problems in the future ( C o o p e r and Cooper, this issue). It is preferable to use an i n d e p e n d e n t quality-assured laboratory rather than a practice laboratory. Obtain the laboratory's advice on the correct sampling methods. In some cases, it may be p r u d e n t to send samples to two different laboratories, although the variations between laboratories may h i n d e r rather than assist the court. Samples collected should either be h a n d e d over to the laboratory in person or may be sent by registered courier or mail. In such instances, the samples should be in a t a m p e r - p r o o f container, a n d it should be signed for on dispatch and on receipt; such receipts should be kept in case they are required in court. A complete laboratory submission f o r m should a c c o m p a n y the samples. A chain of custody record for each individual item and any law e n f o r c e m e n t case n u m b e r assigned or evidence seizure tag n u m b e r s m u s t be included in the record. A cover letter should give a brief description of the case history a n d a t e l e p h o n e contact n u m b e r for the laboratory to use should they require further details should also be supplied. T h e laboratory must be aware that the sample
200
Neil A. Forbes
relates to a legal case b e c a u s e t h e y m a y o p t to r u n q u a l i t y - c o n t r o l s e r a in t h e s a m e b a t c h as t h e legal s a m p l e s . W h e n results a r e available, t h e y s h o u l d b e c o m p a r e d with t h e l a b o r a t o r y ' s norm a l results f o r t h a t species. W h e n e x a m i n i n g b i r d s t h a t have b e e n shot, any p e l l e t s t h a t a r e l o d g e d in t h e skin, p l u m a g e , or within the body should be collected using plastic o r p a d d e d f o r c e p s (so as n o t to d a m a g e t h e m b e f o r e ballistic c o m p a r i s o n ) a n d s h o u l d b e w r a p p e d i n d i v i d u a l l y in p a d d i n g in a s e a l e d r i g i d tamper-proof container and labeled accordingly ( M u n r o , this issue). S u c h p e l l e t s s h o u l d b e h a n d e d d i r e c t l y to t h e p r o s e c u t i o n a g e n c y ofricer in c h a r g e o f t h e case.
Storing Samples N o s a m p l e s , m a t e r i a l s , o r e x h i b i t s o f any k i n d s h o u l d b e d i s c a r d e d . All s a m p l e s s h o u l d all b e c o r r e c t l y s t o r e d , in a m a n n e r s u c h t h a t they a r e preserved. They should be identified, be secure ( f r o m all u n a u t h o r i z e d p e r s o n n e l ) , a n d b e tamper proos Particular care must be paid when s a m p l e s o r carcasses a r e s t o r e d in d e e p freezers t o g e t h e r with o t h e r n o r m a l p r a c t i c e clinical waste t h a t is d e s t i n e d f o r i n c i n e r a t i o n . A d h e s i v e labels c o m m o n l y c o m e loose, a n d tags m a y b e r i p p e d off a c c i d e n t a l l y w h e n k e p t with o t h e r m a t e r i a l s in a freezer. W h e n e v e r possible, a s e p a r a t e f r e e z e r s h o u l d b e u s e d ( M u n r o , this issue). N o r m a l l y all e x h i b i t s a n d e v i d e n c e m u s t be retained until the time of the court appearance and any subsequent appeal hearing. In cases t h a t r e l a t e to w i l d - c a u g h t birds, it m a y b e p r u d e n t to r e l e a s e t h e m b a c k i n t o t h e wild, in a c o n t r o l l e d a n d m o n i t o r e d m a n n e r as s o o n as all n e c e s s a r y d a t a have b e e n r e c o r d e d . S u c h b i r d s can b e e x p e n s i v e to m a i n t a i n in captivity f o r prolonged periods before a hearing and many also suffer as a r e s u l t o f p r o l o n g e d c o n f i n e m e n t .
T h e w o r s t p o s s i b l e s c e n a r i o in s u c h cases is t h a t the d e f e n d a n t m a y m a k e a claim f o r t h e value o f the birds, if t h e r e s u l t o f t h e case is n o t a u t o m a t i c f o r f e i t u r e . I n m o s t cases, t h e value is less t h a n t h e cost o f k e e p i n g t h e m in captivity. W h e n d e a l i n g with illegally o b t a i n e d b i r d s , t h e k e e p i n g o f t h e m o r any derivatives o f t h e m m a y in itself b e a n offense, e v e n w h e n t h e v e t e r i n a r i a n is k e e p i n g t h e m at t h e r e q u e s t o f the a u t h o r i t i e s . This m a t t e r s h o u l d b e investig a t e d a n d a n y r e l e v a n t licenses o r a p p r o p r i a t e written exemptions from such requirements should be obtained.
References 1. Stroud RK: Wildlife forensics: A new and challenging role for the comparative pathologist. Comp Pathol Bull 97:1-2, 1995 2. Feder HA: Succeeding as an Expert Witness. New York, NY, Van Nostrand Reinhold, 1991 3. Cooper ME: An Introduction to Animal Law. London, UK, Academic Press, 1987 4. CooperJE, Cooper ME: Legal cases involving birds: The role of the veterinary surgeon. Vet Rec 129:505-507, 1991 5. H e i d e n r e i c h M: Birds of Prey--Medicine and Management. Oxford, UK, Blackwell Science, 1997, pp 231-957 6. Wyllie I: Guide to Age and Sex in British Birds of Prey. Monkswood, England, Institute of Terrestrial Ecology, 1993 7. Wolfes R, Mathe J, Seitz A: Forensics of birds of prey by DNA fingerprinting with P-labelled oligonucleotide probes. Electrophoresis 12:175-180, 1991 8. Rychlik I, Kubicek O, HolcakV, et al: DNA fingerprinting in Falconidae.Vet Med (Prague) 39:111-116, 1994 9. Wetton J: Genetic studies of the Saker falcon, in 1995 Middle East Falcon Research Group, Proceedings of the Specialist Workshop. Abu Dhabi, United Arab Emirates, National Avian Research Council, 1995, pp 169-178 10. Wink M: Molecular phylogeny of the saker and other desert falcons, in 1995 Middle East Falcon Research Group, Proceedings of the Specialist Workshop. Abu Dhabi, United Arab Emirates, National Avian Research Council, 1995, pp 178-202 11. Alford A: Environmental applications of mass spectrometry. Biomed Mass Spectrom 5:259-986, 1978