Texas Bar Journal • September 2026

Use of Social Media Evidence in Litigation

Practical considerations for Texas litigators.

Written by Hayley Ellison

Facebook posts, Instagram photos, and instant messenger threads now surface in nearly every kind of Texas litigation, from criminal prosecutions to divorces. As the Texas Court of Criminal Appeals recognized over 15 years ago, “although rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally adequate to the task.”¹

Practically speaking, that means admissibility of social media evidence turns on the same four questions that govern admissibility generally: Is it relevant? Is it authentic? Is it hearsay? And does it satisfy the best evidence rule? This article walks through each inquiry, providing practical guidance for Texas litigators who want to introduce (or keep out) social media evidence.

IS IT RELEVANT?
To be admissible, social media evidence must have a tendency to make a fact of consequence more or less probable.² But even relevant evidence may be excluded under Texas Rule of Evidence 403 if its probative value is substantially outweighed by unfair prejudice, confusion, or needless delay.³

Social media evidence may be highly prejudicial but not unfairly so. For instance, in Beham v. State, the Texas Court of Criminal Appeals held the defendant’s Facebook photos, in which he held himself out as a gang member, were admissible character evidence at the punishment phase.⁴ The defendant was convicted of aggravated robbery, and a second trial was held as to punishment only.⁵ During the punishment trial, the state introduced the photos and a law enforcement expert on gang activity explained their meaning.⁶

The court of appeals held the state’s evidence was not relevant to the jury’s determination of a proper punishment.⁷ The Court of Criminal Appeals reversed, explaining that a “factfinder could rationally conclude that one who willfully displays these indicators [of gang membership] on his social media profile is more likely . . . to be holding himself out as a gang member,” and “the kinds of gangs who display these characteristics are often involved in violence and felonious conduct[.]”⁸

Practice Tip: Counsel your clients that their social media may become an exhibit at trial—even if it’s inflammatory or profane. Remember that any prejudice may not be unfair prejudice if the social media evidence tends to make a fact of consequence more or less probable.

IS IT AUTHENTIC?
Most fights over social media evidence concern authentication. The Texas Court of Criminal Appeals’ seminal decision in Tienda v. State is instructive.⁹

In that case, the defendant was tried for participating in a deadly shoot-out.¹⁰ The state subpoenaed myspace.com for the general “Subscriber Report” associated with each of three accounts that purportedly belonged to the defendant, printed images of each profile page directly from myspace.com, and marked the printouts as exhibits for trial.¹¹ The profile pages depicted the defendant displaying gang signs, boasting about “killing,” and referencing the shooting victim’s death.¹² Instant messages exchanged between the account holder and other users specifically referenced other parties present during the shooting, circumstances surrounding the shooting, and details about the state’s investigation of the shooting.¹³

The defense challenged the printouts’ authenticity by eliciting “testimony regarding the ease with which a person could create a MySpace page in someone else’s name and then send messages, purportedly written by the person reflected in the profile picture, without their approval.”¹⁴ The trial court admitted the evidence.¹⁵

Reviewing that decision, the Court of Criminal Appeals first recognized that “computers can be hacked, protected passwords can be compromised, and cell phones can be purloined.”¹⁶ Accordingly, the court acknowledged: “That an email on its face purports to come from a certain person’s email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message
emanates from a cell phone number assigned to the purported author—none of these circumstances, without more, has typically been regarded as sufficient to support a finding of authenticity.”¹⁷

With these premises in mind, the court concluded “the internal content of the MySpace postings—photographs, comments, and music—was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that they were created and maintained by the [defendant].”¹⁸ For example, the pages included pictures of someone with the defendant’s unique tattoos, and the associated messages referred specifically to the defendant’s ankle monitor.¹⁹ The court held the jury was entitled to assess whether the state had made a prima facie showing that it was the defendant, “not some unidentified conspirators or fraud artists, who created and maintained these MySpace pages.”²⁰

Practice Tip: To authenticate social media evidence, a proponent must show more than that the statements were made using a particular account or address. Be prepared to present additional evidence tending to link the alleged declarant with the social media post or message, including business records affidavits when available.

IS IT HEARSAY?
Since social media statements are necessarily made out of court, they will always implicate hearsay concerns. While a party-opponent’s social media posts may be admissible under the party-admission exemption,²¹ interesting issues arise when a party is accused of adopting social media posts made by others.

In Schack v. Property Owners Association of Sunset Bay, for example, the plaintiffs alleged real property covenants and restrictions barred their neighbor from using his property as a short-term rental.²² The plaintiffs complained on appeal that the trial court had excluded content from the defendant’s VRBO page, including a section of reviews and comments posted by his guests.²³ The plaintiffs argued the comments, although not posted by the defendant himself, were attributable to him because, by permitting “the comments to remain on his page, he thereby adopted [them] as his own statements and manifested his belief in the truth of these comments.”²⁴

The court of appeals disagreed, concluding the defendant’s “passive role” with respect to the VRBO reviews did not manifest adoption of or belief in their truth.²⁵ The court’s decision largely turned on the fact that VRBO’s website does not allow homeowners to remove unfavorable or untrue reviews, so “[t]he fact that the reviews appeared on [the defendant’s] VRBO page cannot be taken as an indication of [his] belief in their truth.”²⁶ The court recognized its ruling might be different if the defendant had published the reviews for the express purpose of promoting his business.²⁷

Practice Tip: Social media posts and messages made by others may be attributable to your client, so arm yourself with evidence tending to show the statements were not actually adopted by your client.

IS IT THE BEST EVIDENCE?
Another frequent issue raised by social media evidence is whether screenshots and printouts, rather than native files, are excludable because they are not the “best evidence” available. Although Texas Rule of Evidence 1002 requires an “original” writing, recording, or photograph to prove its contents,²⁸ Rule 1001 defines the “original” of electronically stored information as “any printout—or other output readable by sight—if it accurately reflects the information.”²⁹

In James v. State, the trial court rejected a best-evidence challenge to screenshots of Facebook messages where the uploaded native files were unprintable.³⁰ The court of appeals agreed the messages were admissible because the recipient testified that they accurately depicted the conversation, which the trial court confirmed via in-camera review.³¹ The court also noted there was no evidence that the messages had been altered and there was no objection to the screenshots’ quality compared to the uploaded files.³²

Practice Tip: Screenshots of social media evidence may be admissible, but the proponent should come prepared with additional evidence demonstrating that screenshots are not altered or incomplete.

CONCLUSION
Although social media evidence is evidence like any other, it raises unique concerns related to relevance, authentication, hearsay, and best evidence. Litigators should be prepared to address each of these issues and stay abreast of a rapidly evolving legal landscape.

HAYLEY ELLISON is a partner in Davis & Santos in San Antonio, where her practice is focused on federal and state appeals and commercial litigation, including bankruptcy litigation and complex business disputes. She is certified in civil appellate law by the Texas Board of Legal Specialization.