Habeas Corpus Review of State Trial Court Failure to Give Lesser Included Offense Instructions

This Note advocates that federal courts review state criminal convictions in habeas corpus proceedings when lesser included offense instructions are available under state law but were not given. Part I demonstrates that granting such review conforms to the modern jurisdictional scope of federal collateral review because failure to give the instructions undermines the fact-finding function of juries and is therefore unconstitutional. Part II analyzes the proper standard of review and determines that the federal interest in protecting the reliability of the fact-finding process should prevail over any conflicting state interest in refusing to give lesser included offense instructions. Part II then proposes a standard of review that protects this federal interest while at the same time maintaining federal-state comity by invalidating only those state failures to give lesser included offense instructions that are the result of state policies unrelated or antagonistic to the goal of furthering the reliability of the fact-finding function of juries.