The trial court’s rulings concerning the evidence of what defendant told plaintiffs brother amounted to reversible error. Moreover, the error was far from harmless, because the evidence that plaintiff sought to introduce was directly relevant to the question whether defendant was *899responsible for commencing the underlying criminal proceeding against him. The trial court prevented plaintiff from presenting the most powerful evidence in his case. For that reason, I dissent.
L
A difficult and contentious matrimonial situation devolved into a criminal indictment, resulting in an acquittal that bred a malicious prosecution claim. The evidence shows that plaintiff and defendant, his ex-wife, engaged in an angry telephone conversation, concerning plaintiffs desire to take their children on a vacation during school term. Defendant then accused plaintiff of violating an order of protection issued against him the previous year. She contacted the police, and filed a sworn statement claiming that plaintiff had threatened to “put a hit out on [her].” Plaintiff was then charged with two counts of first-degree criminal contempt (Penal Law § 215.51 [b] [iii], [iv])—for placing defendant in reasonable fear of injury or death by electronic means, and for repeatedly making telephone calls with intent to harass, annoy, threaten or alarm, and no purpose of legitimate communication. Plaintiff was acquitted, following a bench trial, by a court that found defendant’s testimony incredible.
Plaintiff then sued his former wife for malicious prosecution, claiming that she lied to the police, causing him to be prosecuted on baseless charges. The matter proceeded to a jury trial.
To show that defendant’s statement to the police that he had threatened to “put a hit out on [her]” was false, plaintiff offered an audiotape of a conversation between his brother and the defendant that occurred after plaintiff had been arrested. Plaintiff offered to prove that, during the conversation, defendant said, essentially, that she had contacted the police out of frustration, because there was no other way to force plaintiff to get psychiatric treatment, not because she was in fear of injury or death. He also offered to prove that, during the conversation, defendant told plaintiffs brother a “fabricated” story “about some prostitute being killed in Maine,” which defendant invented to harm plaintiffs reputation.
The tape was offered on the following basis. “We would ask this witness [i.e., plaintiffs brother] if he recognized the voices and whether his prior relationship with [defendant] enabled him to identify her voice and whether or not the tape recording is fair and accurate.” The trial court sustained defendant’s *900objections to admission of the tape and to testimony from plaintiffs brother regarding what defendant had said to him.
This, in my view, was clear error. An audiotape may be authenticated precisely the way that plaintiffs counsel suggested—“by the testimony of a party to the conversation that the tape is unaltered and completely and accurately reproduces the conversation” (Prince, Richardson on Evidence § 4-213 at 150 [Farrell 11th ed], citing People v Ely, 68 NY2d 520, 527-528 [1986]). As stated in a well-established treatise on the law of evidence,
“if a percipient witness overheard the voices as they were recorded, this witness may provide the required authentication foundation by testifying that the sound recording is an accurate record of what the witness did hear. In such a case, no chain of custody is required, since the purpose of proving the chain is to show that the recording is in the same condition as when first recorded” (2 Broun, McCormick on Evidence § 216 [6th ed] [footnotes omitted]; see also Martin, Capra and Rossi, New York Evidence Handbook § 9.8.1 at 907 [2d ed]).
The majority relies on our decision in People v Ely (68 NY2d 520 [1986]). But the holding in that case related! to the authenticity of the tapes, not, as here, simple admissibility upon being identified by one of the participants. Indeed, Ely specifically states the rule the trial court failed to follow here: that “[t]he necessary foundation may be provided in a number of different ways” and that one such “well-recognized” foundation is “[t]estimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered” (id. at 527, citing People v McGee, 49 NY2d 48, 60 [1979], People v Arena, 48 NY2d 944, 945 [1979], United States v Sandoval, 709 F2d 1553, 1555 [DC Cir 1983], and United States v Buzzard, 540 F2d 1383 [10th Cir 1976], cert denied 429 US 1072 [1977]). The majority does not suggest that this is no longer the law. Morever, we noted that chain of custody is “not a requirement as to tape recordings” (Ely, 68 NY2d at 527-528; see also McGee, 49 NY2d at 60).
Our decision in Ely was supported by an earlier precedent, People v McGee (49 NY2d 48 [1979]), where we held that, with respect to a tape recording, “[a] foundation may be established by a participant to the conversation who testifies that the conversation has been accurately and fairly reproduced. Proof *901that the evidence has not been altered may be established in a similar fashion” {id. at 60 [citations omitted]).
It was also reversible error to exclude, as improper hearsay, testimony by plaintiffs brother about what defendant said on the audiotape. Defendant’s statements were admissible as admissions of a party opponent (see e.g. 2 Broun, McCormick on Evidence § 254 [6th ed]). Indeed, the majority accepts that defendant’s statements to plaintiffs brother were admissible, though it dismisses the objection to their exclusion as unpreserved and the error as harmless {see majority mem at 898).
IL
I part with the majority most definitively with regard to the question whether the trial court’s errors were harmless. In my view, the evidence that was improperly excluded was directly relevant to the question whether defendant initiated the prosecution, and did so falsely.
To recover for malicious prosecution, plaintiff had to establish, initially, “the commencement or continuation of a criminal proceeding by the defendant against the plaintiff” (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). Our case law makes clear that, to establish this first element, plaintiff must show that “the indictment was procured by fraud, perjury, suppression of evidence, or other bad-faith conduct” (majority mem at 898, citing Colon v City of New York, 60 NY2d 78, 83 [1983]).
Contrary to the majority opinion {see majority mem at 896 n), we have explained how a plaintiff in a malicious prosecution case may demonstrate that the defendant “commenced” the underlying criminal proceeding. Plaintiff may do so “by showing that the defendant did not make a full and complete statement of the facts either to the magistrate or to the District Attorney; has misrepresented or falsified the evidence, or else has kept back information or facts which might have affected the result” (Hopkinson v Lehigh Val. R.R. Co., 249 NY 296, 300 [1928]). On the other hand,
“[i]f a person disclose[s] fairly and truthfully to an officer whose duty it is to prosecute crime, all matters within his [or her] knowledge, which as a [person] of ordinary intelligence he [or she] is bound to suppose would have a material bearing upon the question of the innocence or guilt of the persons suspected, and leaves it to the prosecutor to act entirely upon [the prosecutor’s] own judgment and *902responsibility as a public officer, and does no more, he [or she] cannot be held answerable in an action for malicious prosecution, even if the officer comes to a wrong conclusion and prosecutes when [the prosecutor] ought not to do so” (id. at 300-301; see also PJI SiSO.B).1
While the quoted sentences from Hopkinson v Lehigh Val. R.R. Co. described the probable cause element within the context of that case, they have taken on a wider significance in subsequent case law. “New York law has long equated the civil defendant’s failure to make a full and complete statement of the facts to the District Attorney or the court, or holding back information that might have affected the results, with that defendant’s initiation of a malicious prosecution” (Ramos v City of New York, 285 AD2d 284, 299-300 [1st Dept 2001] [emphasis added], citing Hopkinson v Lehigh Val. R.R. Co., 249 NY at 300; see also e.g. Present v Avon Prods., 253 AD2d 183, 189-190 [1st Dept 1999] [citing Hopkinson for the proposition that “(o)ne who does no more than disclose to a prosecutor all material information within his knowledge is not deemed to be the initiator of the proceeding”]).
Moreover, the commencement of criminal proceeding element and the probable cause element are not as easily disentangled as the majority seems to assume. Although we have identified commencement as a separate element since at least Broughton v State of New York (37 NY2d 451, 457 [1975]), our earliest malicious prosecution cases make it clear that the gravamen of the tort is that “the defendant wickedly and maliciously and without probable cause gave false information . . . [causing prosecution] and that the proceedings terminated in plaintiffs favor” (Al Raschid v News Syndicate Co., 265 NY 1, 3 [1934]; see also Burt v Smith, 181 NY 1, 5 [1905] [“(a) malicious prosecution is one that is begun in malice, without probable cause to *903believe it can succeed, and which finally ends in failure”]). Similarly, the commencement of proceeding element and the probable cause element are considered to be a single element in the Restatement of Torts: “initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice” (Restatement [Second] of Torts § 653 [a]).
Here, plaintiff was prepared to prove that defendant was responsible for his prosecution, by lying to the police. The evidence was directly relevant to whether defendant “commenced” the proceeding within the meaning of our case law. Contrary to the majority’s analysis (see majority mem at 898), the fact that the ultimate decision whether or not to prosecute a case falls on the District Attorney’s office, not the complainant, proves nothing. Under our case law, if the complainant engages in bad faith conduct that results in a prosecution, she has “commenced” the prosecution.
The majority surely does not mean to hold that one who lies to the police in order to cause a criminal prosecution is immunized from a malicious prosecution suit because a prosecutor, misled by the false information, chooses to pursue the case. Such a holding would essentially abolish the tort of malicious prosecution. When a complainant
“has put in motion the officers of the law, ... by his [or her] false and malicious statement it does not, either upon principle or authority, lay with him [or her] to say by way of defence that the injury resulting from the wrong committed by him [or her] would not have been consummated but for the innocent mistake of those imposed upon by him [or her]” (Dennis v Ryan, 65 NY 385, 389 [1875]).
The trial court both excluded the tape recording and refused to allow plaintiffs brother to testify about what defendant had told him. In doing so, the court effectively blocked all methods by which plaintiff could establish his case. As such, the error was not harmless.2
Therefore, I would reverse the Appellate Division’s order.
*904Chief Judge Lippman and Judges Ciparick, Grapfeo and Read concur; Judge Pigott dissents and votes to reverse in an opinion in which Judge Smith concurs.
Order affirmed, with costs, in a memorandum.
. Supreme Court’s jury instruction, which was drawn from PJI 3:50.2, accurately tracked this case law:
“If you find that the defendant fairly and truthfully disclosed to the District Attorney all matters within her knowledge that a reasonably prudent person would believe important on the question of plaintiffs guilt or innocence and that the decision to present the matter to the Grand Jury was made by the District Attorney, the defendant is not responsible for the prosecution. If, however, you find that the defendant directed the District Attorney to prosecute and gave the District Attorney information that the defendant knew to be false, the defendant is responsible for prosecution.”
. Although my view of this case does not depend on it, I believe that the other evidentiary rulings raised by plaintiff were errors as well. As to the admission of the grand jury minutes, there is no dispute that they would have been admissible, and I believe they would have been particularly germane here where the very basis of plaintiffs claim is that defendant lied before the grand jury so that he would be prosecuted. Finally, the trial court’s refusal to *904permit plaintiff to prove that defendant lied to obtain the order of protection that formed the basis of plaintiffs subsequent prosecution was an abuse of discretion, regardless of whether plaintiff challenged the order of protection when issued.