Does the right to self-representation include the right to prepare a defense outside the earshot of the prosecution, or can the prosecution have unfettered and undisclosed access to an incarcerated pro se defendant's trial preparation phone calls and use them at trial to gain a tactical advantage?

In Faretta u. California, 422 U.S. 806, 818 (1975), this Court found that the Sixth Amendment “constitutionalizes ” a pro se defendant ’s right “in an adversary criminal trial to make a defense as we know it.” But this no longer is the case in New York. Rather, as the decision below shows, New York has become the first jurisdiction to permit, without any restrictions, “the People ’s monitoring of the telephone calls that [a pro se defendant] made to his trial witnesses from jail. ” Pet. App. la. Prior court approval is not necessary. A taint team (or other similar mechanism) need not be established. And the pro se defendants do not even need to be told. Indeed, they will remain completely oblivious to this tactical advantage unless the prosecution uses the calls to cross-examine a defense witness —as happened here. Though it should seem obvious, in an adversarial system, a pro se defendant is not preparing a defense “as we know it” if the prosecution secretly knows it, too. The questions presented are as follows: 1. Does the right to self-representation include the right to prepare a defense outside the earshot of the prosecution, or can the prosecution have unfettered and undisclosed access to an incarcerated pro se defendant ’s trial preparation phone calls and use them at trial to gain a tactical advantage? 2. When conducting a Faretta hearing, must courts ensure on the record that defendants understand the pitfalls of self-representation —including, specifically, the nature of the charges and range of allowable punishments —before relieving counsel?