Creepy defendant goes around to local school bus stops and tries to abduct little kids. He gets arrested, in custody, Mirandized, waived, then confesses. However, the video tape malfunctioned and cut short the confession. The part we have on video is still good. Does the fact that part of the confession is not on video (because the tape cut short) make the entire confession inadmissible?

I think you can use it. CCP 38.22 requires that the statement be recorded - so stick to what was recorded. Stay away from what may have been said after the tape ends. I assume the warnings were given at the beginning, so that should not be a problem. Defense may argue that the recording has been altered - but it has not been - it merely ended. However, note that 38.22(e) requires that courts STRICTLY construe the requirements for admissibility. On a related note, train your officers to take NONCUSTODIAL statements so that 38.22 does not apply.

The cases cited by Stride and Rolater would seem to support admissibility. Quinones, 592 S.W.2d at 944 (accidental alteration).

Shephard v. State 749 S.w. 283, portion of videotape can still be admitted despite alteration if alteration is accidental and is sufficiently explained so that its presence does not affect the realiability and trustworthiness of the evidence.