Cite as: 508 U. S. 333 (1993)
O'Connor, J., concurring in judgment
a constitutional violation, may not be corrected on federal habeas. Some erroneous state-law instructions, however, may violate due process and hence form the basis for relief, even in a noncapital case. In McGuire, a majority of the Court found that the particular erroneous instruction at issue did not give rise to a constitutional violation, but the very fact that the Court scrutinized the instruction belies any assertion that erroneous instructions can violate due process only in capital cases.
We have not held that the Eighth Amendment's requirement that the jury be allowed to consider and give effect to all relevant mitigating evidence in capital cases, see, e. g., Boyde, supra, applies to noncapital cases. Nevertheless, we have held that other constitutional amendments create "constitutionally relevant evidence" that the jury must be able to consider. See, e. g., Rock v. Arkansas, 483 U. S. 44, 51 (1987) ("The right to testify on one's own behalf at a criminal trial has sources in several provisions of the Constitution"); Delaware v. Van Arsdall, 475 U. S. 673, 678-679 (1986) (Rehnquist, J.) ("[T]he Confrontation Clause guarantees an opportunity for effective cross-examination" (internal quotation marks omitted)). The category of "constitutionally relevant evidence" is not limited to capital cases.
In this case, the question is not whether application of the "reasonable likelihood" standard of Boyde is a new rule. It is not. See ante, at 341-342; supra, at 348. Nor is the question whether jury instructions may be so erroneous under state law as to rise to the level of a constitutional violation. It is clear to me that they may. See, e. g., McGuire, 502 U. S., at 72; id., at 78 (O'Connor, J., concurring in part and dissenting in part). The question is whether reasonable jurists could disagree over whether the particular erroneous instruction at issue here—which we assume created a reasonable likelihood that the jury did not consider Taylor's affirmative defense once it determined the two elements of murder were established—violated the Constitution.
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