Built-in evidentiary damage is a situation in which the evidentiary damage is the result of the negligent act that caused the direct damage. As noted, case law has recognized evidentiary damage of this type (e.g., the Meir; Interest Bushwick; Interest Maimoni (in paragraph 113 of Justice Amit's opinion here); Civil Appeal 1457/07 Herzliya Municipality v. Katz (14.1.2009); Civil Appeal 2886/05 Ashkenazi v. Clalit Health Fund (November 8, 2010)). It should be noted that the use of structured or unstructured evidentiary damage does not lead to the determination of liability, but only to the transfer of the burden. Just as the use of the rule of "the thing testifies to itself" should not be ruled out (Article 41 To the Ordinance The Torts) on the grounds that it may lead to the determination of excessive liability, thus other situations of transferring the burden such as evidentiary damage should not be ruled out (for example, the rejection of a medical malpractice claim despite the existence of evidentiary damage, see the judgment written by Other Municipality Requests 2342/09 Jubran v. Clalit Health Services (6.4.2011)).
With regard to the possible use in criminal law of evidentiary damage caused as a result of investigative failures, it should be noted that in any case, the burden rests on the prosecution's shoulders at a level beyond any reasonable doubt. As an example, we will examine a case in which Reuven is accused of burglary. The prosecution brought evidence that proves beyond a reasonable doubt that Reuven was the burglar, but the police were negligent in not examining fingerprints at the scene of the burglary. The defense argued that if the fingerprints had been examined, it would have been discovered that they belonged to Shimon, and not to Reuven. The answer to this is that according to the doctrine of evidentiary damage, the burden of proof shifts to the claim. However, it is possible that the prosecution met the burden and repelled the claim. In other words, the other evidence gathered by the prosecution, which, as stated, proves beyond a reasonable doubt that Reuven was the burglar, is sufficient to prove that if the fingerprints had been examined, Reuven's fingerprints would have been discovered, or even though the presence of another fingerprint would not reasonably contradict this conclusion. As determined in the case Suleiman: