Evidence Act 2006

Trial process - Corroboration, judicial directions, and judicial warnings

126: Judicial warnings about identification evidence

You could also call this:

"Be careful when someone says they saw the person who did something wrong, as they might be mistaken"

If you are on a jury in a criminal trial, the judge must warn you to be careful when considering identification evidence. This is because the case against the defendant might depend on someone identifying them, and a mistaken identification can lead to a serious miscarriage of justice. You need to remember that a witness can be convincing even if they are mistaken.

When the judge warns you, they must tell you that a mistaken identification can be very serious, and that a convincing witness might still be wrong. If there are several witnesses identifying the defendant, the judge must also remind you that all of them could be mistaken.

If someone's identity is in question during a trial and they disagree with the evidence, the court has to be careful before making a decision based on that evidence, and consider the possibility that a witness might be mistaken.

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This page was last updated on 29 June 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393965.

Topics:

Crime and justice > Courts and legal help

125: Judicial directions about children’s evidence, or

"Courts must treat evidence from children fairly and not assume it's untrue just because they're kids."

126A: Judicial directions about misconceptions arising in sexual cases, or

"Judge must correct wrong ideas in sexual offence court cases"

Part 3Trial process
Corroboration, judicial directions, and judicial warnings

126Judicial warnings about identification evidence

In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
The warning need not be in any particular words but must—
warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
alert the jury to the possibility that a mistaken witness may be convincing; and
where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

If evidence of identity is given against the defendant in any criminal proceeding and the defendant disputes that evidence, the court must bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, must bear in mind the possibility that the witness may be mistaken.

Notes

Section 126(3): inserted, on 8 January 2017, by section 35 of the Evidence Amendment Act 2016 (2016 No 44).