We have a case pending where we cannot find a confidential informant. The CI is not crucial to the case as we have a video of the illegal acts by the defendant. Can we play the video, with the CI in it, without calling the CI as a witness? Could we argue that the CI's statements in the video are nontestimonial?

Trial tomorrow... need help.

How confidential can he be if you will be identifying him on video? Assuming you are no longer seeking to protect his identity, then what difference does it make whether you can locate him?

The defense might seek a continuance, claiming they need him, but seems that they would have to identify some exculpatory evidence he could provide.

What about his statements in the video as they relate to Crawford and confrontation?

If I understand the question, you are not concerned about admisability of the tape under CCP 38.22 and you are willing to identify the CI's voices on the tape... and you gave the defense a copy of the tape at least 20 days ago, etc.

Instead you are asking about the defendant's right to confront his accuser as required by Crawford v. Washington. Is that correct?

You need to look at what the statement are. Are they really hearsay? If he is just heard talking on the tape, but not making factual representations, or if the statements are not testimonial, then you have neither a hearsay nor a Crawford problem.

For example:
CI: Do you have the dope?
Defendant: Yep
CI: Here's the money.
Defendant: Here's the dope.
CI: Thanks, dude.

None of that is Crawford- or hearsay-implicating.

If the CI does say something cross-Crawford, then you could edit the tape to take it out, possibly.

I think we need more detail on what it is that concerns you about what is said by the CI on the tape.

Baca v. State, 2006 Tex. App. LEXIS 4698 - Eastland Court of Appeals held statement made by cofidential informant - "nontestimonial"