¶ 80. (concurring). While I agree with the majority opinion's conclusion to affirm the judgment, I write separately because I would hold that: (1) counsel has knowledge that his or her client intends to testify falsely when his or her belief is based on objective uncontradicted facts; (2) counsel's representation of McDowell was not deficient under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), as explained in Nix v. Whiteside, 475 U.S. 157 (1986);1 and (3) counsel with knowledge that his client is about to commit perjury should not passively facilitate it. Accordingly, I respectfully concur.
*528I. BACKGROUND
¶ 81. McDowell, who was convicted of five counts of sexual assault while using a dangerous weapon, as party to the crime, complains he did not have effective assistance of counsel because when he began to tell his version of how his semen came to be mixed with the victim's saliva at the crime scene, defense counsel switched to a narrative form of testimony, instead of assisting McDowell in bringing out all the details of his story. The majority concludes that trial counsel's performance was deficient, although not prejudicial, because in order to refuse to present a defendant's trial testimony in the usual question and answer format, trial counsel must have knowledge that the defendant is going to commit perjury. According to the majority opinion, that knowledge must be based on "the client's expressed admission of intent to testify untruthfully [and the client's admission] must be unambiguous and directly made to the attorney."2 The majority opinion concludes that the change to a narrative presentation of McDowell's testimony by trial counsel was deficient performance3 because McDowell had not personally told trial counsel that he was going to testify untruthfully;4 the beginning of McDowell's testimony was not sufficient to provide "knowledge" that McDowell intended to lie;5 and even if we were to assume it was *529sufficient, counsel should have asked for an adjournment and advised McDowell a second time6 that the testimony he was about to give would have to be in a narrative form.7
II. DISCUSSION
A. Standard of Review
¶ 82. A claim of ineffective assistance of counsel is a mixed question of fact and law. State v. Franklin, 2001 WI104, ¶ 12, 245 Wis. 2d 582, 629 N.W.2d 289. We will not overturn a circuit court's findings of fact unless they are clearly erroneous. Id. However, whether trial counsel's representation was deficient or prejudicial to a defendant's case are questions of law that we review de novo. Id.
B. Knowledge of Intent to Testify Falsely
¶ 83. Whether defense counsel should assist a defendant in a criminal trial in presenting his testimony to the trier of fact when defense counsel believes that the defendant will .testify untruthfully presents a tension between a defendant's right to testify and the *530truth-seeking function upon which a trial is based. See Nix, 475 U.S. at 173. Courts have addressed this tension by applying various quanta of proof to the degree of certainty with which trial counsel holds the belief that the defendant will commit perjury when he or she testifies. See Commonwealth v. Mitchell, 438 Mass. 535, 545-46 (S.Ct. 2003). The majority opinion concludes defense counsel would not have sufficient knowledge to refuse to assist a criminal defendant in presenting his testimony, unless the knowledge that the defendant planned to testify untruthfully was obtained by the defendant's own admission of such intent made directly to trial counsel.8
¶ 84. McDowell agrees with the majority position, that sufficient knowledge of the intent to commit perjury is present only when the defendant tells his or her attorney that he or she will lie on the stand. The State asks us to conclude that sufficient knowledge may be based on facts obtained from sources other than a defendant's admission, and to apply "firm factual basis" as the necessary quantum of proof for those facts. It cites Mitchell, supra, as supportive of its position.
¶ 85. In Mitchell, the Massachusetts Supreme Court reviewed various standards of proof applied by courts that have wrestled with deciding on a workable standard for sufficient knowledge by criminal defense counsel that his or her client is planning to commit perjury.9 The court in Mitchell decided to require "a firm basis" in objective fact for counsel's knowledge *531because it concluded that quantum of proof provided a proper balance between a lawyer's duty of candor toward the tribunal, by not aiding a client who intends to testify falsely, and a criminal defendant's right to a vigorous defense. Mitchell, 438 Mass, at 546-47. The court also explained that to require too great a quantum of proof, would compel defense counsel to remain silent when a sharp private warning to his or her client could prevent perjury by persuading the client to testify truthfully or not at all. Id. at 546.
¶ 86. I agree that a proper balance between maintaining the truth-seeking function of a trial and a defendant's right to a vigorous defense provided through effective assistance of counsel is essential. However, to accomplish that end, I would require knowledge based upon objective, uncontradicted facts as that which is sufficient to show a defendant's intent to present perjured testimony. This standard recognizes that an attorney may have knowledge that his client is about to lie, without the client directly admitting that to counsel. It also strikes a proper balance between the truth-seeking function of a trial and a defendant's right to present a vigorous defense. In my view, applying the majority's standard will result in more perjured testimony than would a standard based on knowledge *532obtained from objective, uncontradicted facts, and it will place ethical defense attorneys in the position of having to assist with direct examinations of clients whom counsel know are not testifying truthfully.
¶ 87. That standard could include, of course, a statement by the client that he or she intended to relate facts that are not true. It could also be satisfied by objective facts such as McDowell's explanation of how his semen came to be mixed with the victim's saliva at the crime scene. To explain: the victim told police that one of her assailants had ejaculated in her mouth during his sexual assault and she spat the ejaculate at the crime scene. The DNA analysis of the specimen from the crime scene contained DNA from the victim and DNA from McDowell. In McDowell's version of the events, his girlfriend performed fellatio on him in the same location as that in which the sexual assault occurred. McDowell said he ejaculated at the scene, with his ejaculate landing on the same spot where the victim had spat the ejaculate from her assailant, thereby mixing her saliva with his ejaculate. Aside from the implausibility of McDowell being able to hit the exact same spot with his ejaculate as the victim had spat the assailant's ejaculate at the time of the sexual assault, McDowell's testimony cannot be true because if it were, there would be DNA from three persons in the sample the police had examined: DNA from the victim, DNA from her assailant and DNA from McDowell. However, the specimen contained DNA from only two sources: the victim and McDowell. In my view, that is sufficient objective, uncontradicted facts such that when McDowell began to relate what supposedly occurred with his girlfriend, defense counsel had a sufficient quantum of proof to have "knowledge" that McDowell was about to commit perjury.
*533C. Deficient Performance
¶ 88. Counsel has rendered deficient performance when his or her representation falls below an "objective standard of reasonableness." Franklin, 245 Wis. 2d 582, ¶ 13 (quoting Strickland, 466 U.S. at 688). In Nix, cited earlier, the United States Supreme Court, in the context of a claim of ineffective assistance of counsel based upon an attorney's response to a client's proposed perjury, discussed whether that attorney's performance was deficient.10
¶ 89. In Nix, the defendant, Whiteside, was charged with murder. When Whiteside's attorney began representing him, he obtained a statement from Whi-teside that he had stabbed the victim as the victim "was pulling a pistol from underneath the pillow on the bed." Nix, 475 U.S. at 160. However, upon further investigation by counsel, Whiteside explained that he had not really seen a gun; no gun was found on the premises; and no one who was present at the time of the stabbing had seen a gun.
¶ 90. Shortly before trial, Whiteside, for the first time, told counsel that he had seen "something metallic" in the victim's hand. When asked about what he meant, Whiteside responded, "[I]n Howard Cook's case there was a gun. If I don't say I saw a gun, I'm dead." Id. at 161. Trial counsel explained to Whiteside that such testimony would be perjury and that he would not assist him in providing perjured testimony. Trial counsel also informed Whiteside that if he insisted on *534testifying that he saw "something metallic" in the victim's hand, trial counsel would advise the court that in his view Whiteside was going to commit perjury and that counsel would probably be permitted to impeach that testimony before the jury. Id.
¶ 91. Based on counsel's statements, Whiteside testified truthfully and did not say he saw "something metallic" in the victim's hand. Whiteside said that the reason he stabbed the victim was because he was afraid he was going to be shot when he thought the victim was reaching for a gun, thereby raising the issue of self-defense. Testimony also came in that the victim had been seen with a sawed-off shotgun on other occasions and that the police search of the apartment could have been careless and missed a weapon.
¶ 92. Whiteside was convicted of second-degree murder, which was affirmed by the Iowa Supreme Court. Whiteside then sought review of his conviction by habeas corpus in the federal district court. The district court affirmed, but the Eighth Circuit Court of Appeals reversed. The Eighth Circuit concluded:
[C]ounsel's actions in threatening to withdraw, advise the state trial judge and testify against appellant if appellant testified falsely, impermissibly compromised appellant's right to effective assistance of counsel. Despite counsel's legitimate ethical concerns, counsel's actions were inconsistent with the obligations of confidentiality and zealous advocacy.
Whiteside v. Scurr, 744 F.2d 1323, 1329 (8th Cir. 1984). The Supreme Court granted certiorari and took the Eighth Circuit to task on its legal reasoning. The Supreme Court concluded that, "[AJlthough counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking *535steps or in any way assisting the client in presenting false evidence or otherwise violating the law." Nix, 475 U.S. at 166. The Supreme Court emphasized that lawyers have a dual ethical obligation: an obligation to the client for zealous advocacy within the bounds of the law and an obligation to the system of justice as a whole as an officer of the court. Id. at 168-69. It explained:
These standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives from the recognition that perjury is ag much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.
Id. (footnote and citations omitted). Based on these principles, the Supreme Court concluded that counsel had not rendered deficient performance. Id. at 171.
¶ 93. In my view, under the standards set in Nix, McDowell's trial counsel did not render deficient performance when he switched to a narrative format for the presentation of McDowell's testimony. Trial counsel had objective, uncontradicted facts sufficient to have knowledge that when McDowell began testifying about what he and his girlfriend did that he was about to commit perjury. As I will explain below, trial counsel went further than should be required in the face of impending perjury.
*536D. Passive Toleration of Perjury
¶ 94. The majority concludes that when trial counsel has knowledge that a client will commit perjury during his or her testimony because the client has told him that he or she will do so, he must nevertheless continue to represent the client; call the client to the stand to testify; and tell the client that his or her testimony must be presented in the narrative format and what a narrative format means.11 The majority cites People v. Johnson, 62 Cal. App. 4th 608, 621-26 (1998) as support for this being the best "option" under the circumstances.12 However, the United States Supreme Court explained in Nix that not only was a lawyer not to assist in the presentation of perjured testimony, but a lawyer was not to "passively tolerate" a client's giving false testimony because to do otherwise was inconsistent with the purpose of a trial, what "we have long called a 'search for the truth.'" Nix, 475 U.S. at 171.
¶ 95. In concluding that lawyers should not "passively tolerate" the presentation of perjured testimony, the United States Supreme Court rejected the approach of the majority in the case before us, e.g., that a lawyer should explain to the client how to do narrative testimony; call the client to the stand and passively facilitate perjured testimony. Id. at 170 n.6. The Court in Nix also pointed out that this approach in treating a client's intent to present perjured testimony has been rejected by most courts and rejected by the Model Rules of Professional Conduct. Id. at 170.
*537¶ 96. While it is beyond dispute that a defendant has the right to testify in his own defense, State v. Fritz, 212 Wis. 2d 284, 292, 569 N.W.2d 48 (Ct. App. 1997), that right is not absolute. As the United States Supreme Court has explained:
Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely. ... Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully.
Nix, 475 U.S. at 173. Therefore, the United States Supreme Court concluded that for defense counsel to actively persuade a criminal defendant to testify truthfully or not to testify at all by explaining that he or she will withdraw from further representation if the client persists in a claimed right to tell a story counsel knows is false was the proper route to follow because it "deprives the defendant of neither his right to counsel nor the right to testify truthfully." Id. at 173-74.1 fully agree with this rationale, which has been the rule of law in the United States Supreme Court in all cases this writer could find. The truth is the foundation of our justice system, as Justice Benjamin Cardozo so aptly stated:
There is a privilege protecting communications between attorney and client. The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.
Clark v. United States, 289 U.S. 1, 15 (1933).
¶ 97. Accordingly, I would conclude that counsel should follow the example of trial counsel in Nix who, by explaining to Whiteside that counsel would not tolerate perjured testimony and that if necessary he *538would disclose Whiteside's perjury to the court or withdraw, persuaded Whiteside to testify truthfully. In so doing, Whiteside maintained his right to testify and counsel was not put in the position of suborning perjury.
¶ 98. Accordingly, for the reasons set forth above, I respectfully concur.
The majority opinion notes that the State has conceded that trial counsel rendered deficient performance at trial. Majority op., ¶ 52. However, while the arguments of counsel are very helpful, they do not restrict our analysis of the legal issues presented on appeal. Randy A. J. v. Norma I. J., 2004 WI 41, ¶ 31 n.15, 270 Wis. 2d 384, 677 N.W.2d 630.
Majority op., ¶ 43.
In order to satisfy the Strickland v. Washington, 466 U.S. 668 (1984), test for ineffective assistance of trial counsel, a defendant must prove both that counsel's performance was deficient and that the defendant was prejudiced as a result. Id. at 687.
Majority op., ¶ 53.
Id.
At the hearing held under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), trial counsel explained, "There was a juncture in discussions that Mr. McDowell had with myself and [Assistant State Public Defender] Deja Vishny on [the day he was going to testify], where there were several statements by Mr. McDowell[, o]ne of which [was] that he would proffer untruthful testimony if it would help him" and he told trial counsel how his story would go. At that time, trial counsel advised McDowell that if he chose to tell that untruthful story, he would have to testify in the narrative, and counsel explained what a narrative form of testimony was.
Majority op., ¶ 52.
Majority op., ¶ 43.
In Commonwealth v. Mitchell, 438 Mass. 535, 545-46 (S.Ct. 2003), the Massachusetts Supreme Judicial Court noted the following standards have been used for determining when defense counsel has sufficient knowledge for determining that a client is about to commit perjury: a "firm factual basis," United *531States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977); "actual knowledge," United States v. Del Carpio-Cotrina, 733 F. Supp. 95, 99 (S.D. Fla. 1990); "knowledge beyond a reasonable doubt," Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989); "compelling support," Sanborn v. State, 474 So.2d 309, 313 n.2 (Fla. Dist. Ct. App. 1985); a "good-faith determination," People v. Bartee, 566 N.E.2d 855, 857 (Ill. Ct. App. 1991); and "good cause to believe the defendant's proposed testimony would be deliberately untruthful," State v. Hischke, 639 N.W.2d 6, 10 (Iowa 2002).
As stated by the Supreme Court, the issue was, "whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial." Nix v. Whiteside, 475 U.S. 157, 159 (1986).
Majority op., ¶ 47.
Id., ¶ 47 n. 17.