In this regard, the words of Justice Berliner B.Criminal Appeal 11235/05 Anonymous v. State of Israel (unpublished, May 30, 2007):
"Judicial experience shows that the claim of investigative failures finds its way into almost every criminal case. It is always possible to point to investigative actions that might have resulted in a complete and better "product" of an investigation than the one that was actually placed before the court. The question that the court must examine is whether these are omissions that impaired the ability of a certain defendant to exhaust his defense, in other words, whether the action in question could and would have exposed findings that are essential to him.
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The Israeli legal system does not require the presentation of all possible evidence to prove the issue that requires a decision. If the court is convinced that the evidence brought is sufficient, then the existence of additional potential evidence will not harm the weight of the "is."
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The missing investigative actions listed by the defense attorney reflect his opinion on what could have been done, a kind of retrospective argument with the person who conducted the investigation, but nothing more. These are not omissions that impair the weight of the 'is.'"
I am afraid that if we follow in the footsteps of my colleagues, and apply the doctrine of evidentiary damage, which is inherent in my law On the issue of criminal investigation failures, we are liable to reach the conclusion that any hypothetical and speculative claim stemming from one failure of investigation or another will lead to the acquittal of the defendant, since if the application of the doctrine is sufficient to enable the plaintiff to meet the burden of proof in a negligence claim, it can be argued that all the more so that its application raises reasonable doubt in criminal lawsuit. After all, you have almost no investigative failure that cannot be claimed that the police, by their omission, prevented the defendant from being held accountable."the evidentiary basis that he needed as to the hypothetical state of affairs if the police had acted properly" (from the Maimoni above, by replacing the word "municipality" with the word "police"; And see and compare the matter Alhorti In paragraph 7 of the judgment, where Justice Rubinstein comments, Quoting from the judgment in a criminal appeal 4855/02 State of Israel v. Borowitz, IsrSC 59(6) 776, 837 (2005), that as a rule, the doctrine of evidentiary damage is not necessary for the purpose of doing justice in the criminal field, since the burden is in any case on the prosecution; See also the words of Justice Naor in a criminal appeal on this matter 7164/07 Al-Hawashala v. State of Israel, paragraph 8 of the judgment (unpublished, February 11, 2008)).