(concurring). While I have misgivings and doubts about the majority’s evaluation of the claims of ineffective assistance of counsel in this case and of the prejudicial effect of the state’s references to the defendant’s silence,1 I concur in the result *244the majority reaches and write separately to express my reservations about the majority’s analysis of the ineffective assistance of counsel claim.
The majority opinion is the latest in a series of opinions of this court that depart from the standard we established in State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1 (1973), to test ineffective assistance of counsel claims. In determining whether the defendant was denied his state or federal constitutional right to effec*245tive assistance of counsel, the majority states that it tests the alleged ineffectiveness of counsel’s representation by using the Harper standard, but phrases the standard by which it actually measures the allegations in terms of whether there was a “basis in reason” for counsel’s actions, whether the “conduct was unreasonable,” and whether the conduct was “contrary to the actions of an ordinarily prudent lawyer.” It is unclear whether the majority has rejected the Harper test, whether the majority states one standard in several ways or whether it states several standards in the alternative or conjunctive. The majority opinion thus further confuses an already complex area of the law.
The use of several standards to evaluate effective assistance of counsel claims is not unique to this opinion or this court.2 In State v. Harper, 57 Wis. 2d 543, 557, 205 N.W.2d 1, 9 (1973), this court abandoned the “sham and mockery of justice” standard and adopted a more stringent standard for reviewing ineffective assistance of counsel claims. The Harper standard states that the defendant’s representation must be equal to that which the ordinarily prudent lawyer, skilled and versed in criminal law, would give to clients.
Some of our opinions since Harper, like this majority opinion, have purported to use the Harper standard (the ordinarily prudent lawyer standard) but in reality have used a “basis in reason” or “any rational basis” standard. The first opinion in which this court moved away from Harper to this new standard was Weatherall v. State, 73 Wis. 2d 22, 242 N.W.2d 220 (1976), cert. den., 429 U.S. 923 (1976), where the court stated the Harper *246standard, and then casually added the following language:
“We are not required to predict the outcome of the case if it had been tried as the postconviction counsel now states he would then have tried it. The sole question before us is whether there was a basis in reason or any rational basis for the trial counsel recommending to his client that the defense of entrapment not be attempted.” 73 Wis. 2d at 28 (emphasis added).
Later cases picked up the Weatherall “basis in reason,” “any rational basis” language, expanded upon it, and applied it. See State v. Rock, 92 Wis. 2d 554, 285 N.W.2d 739 (1979); State v. Nye, 100 Wis. 2d 398, 302 N.W.2d 83 (Ct. App. 1981), summarily aff’d 105 Wis. 2d 63, 312 N.W.2d 826 (1981).
The Harper standard and the Weatherall “basis in reason” standard are not necessarily the same. The cases seem to establish two standards which require distinct modes of analysis and levels of proof.
The Harper standard appears to call for proof and determination of a legal professional’s alleged ineffectiveness in the same manner as proof and determination of any professional’s ineffectiveness. Ineffectiveness may not necessarily be the same as malpractice, but this court in Harper recognized that the standards for professional legal services are analogous to the standards for professional medical and dental services. One would therefore expect to read in the records the testimony of expert witnesses as to the degree of care and skill required of an ordinarily prudent lawyer. I have not read such testimony. Perhaps the court, being skilled in the practice of law, may without testimony determine both the appropriate standard of care and whether the lawyer’s conduct conformed to the standard. The court is its own expert and some would say is taking judicial notice of the appropriate standard of care and the deviation therefrom. *247Is such judicial notice advisable or permissible under ch. 902, Stats. 1979-80?
The ordinarily prudent lawyer standard appears to call for three levels of proof and analysis: first, the parties must present proof of, and the court must make a determination of, what the attorney did or did not do and what was the basis of the conduct giving rise to the claim of ineffectiveness; second, the parties must present proof of, and the court must make a determination of, what an ordinarily prudent lawyer would do in like circumstances ; and third, the court must determine whether the lawyer’s challenged representation met that standard.
The “basis in reason” standard (or the “any rational basis” standard, which I assume is the same standard) appears to call for two levels of proof and analysis: first, the parties must present proof of, and the court must make a determination of, what the attorney did or did not do and what was the basis of the conduct; second, the court must determine whether the lawyer’s conduct has a basis in reason or any rational basis. The lawyer whose representation is being challenged may have an after-the-fact explanation for his or her conduct or the court itself may hypothesize an explanation for the conduct. This standard, unlike the Harper standard, does not appear to call for an objective evaluation of an attorney’s conduct in light of professional standards, but for the court’s subjective evaluation of an attorney’s conduct.3 Using the “basis in reason” standard, then, *248may very well come full circle back to the “sham and mockery of justice” standard we rejected in Harper. 57 Wis. 2d at 551-52. The “sham and mockery of justice” standard, like the “basis in reason” standard, calls for a subjective evaluation of the record rather than an objective evaluation of the challenged conduct in light of professional standards.
Perhaps one reason the court has drifted away from the Harper test back toward the “sham and mockery” test is because the court has been unwilling to give meaning to the Harper standard. While the Harper standard presents a measurable objective standard to evaluate effective assistance of counsel claims, its generality has made it, as Judge Bazelon has said, an “empty vessel into which content must be poured.” Judge Bazelon further observed that “the courts have failed to address these questions [that is, what is customary or reasonable for a lawyer to do] with the result that the new test has made little change.” Bazelon, The Realities of Gideon and Argersinger, 64 Geo. L.J. 811, 820 (1976).
In view of the erosion of the Harper standard and increased litigation raising claims of ineffective counsel, I suggest that we reexamine the very difficult question of how we, as judges and as lawyers, should evaluate effectiveness of counsel claims. The assumption underlying my discussion is, as we recognized in Harper, 57 Wis. 2d at 557, n. 8, that lawyers need guidelines for their conduct and courts need guidelines to evaluate effective representation. Guidelines can educate attorneys, inform the parties about the evidence needed to prove ineffectiveness of counsel, and provide the courts with a framework to assess the attorney’s conduct.
This court has recognized the need for such guidelines, *249for filling “the empty vessel,” and we adopted in Harper several sections of the ABA Standards for the Defense Function as partial guidelines for deciding future cases. 57 Wis. 2d at 557, n. 8. See also State v. Simmons, 57 Wis. 2d 285, 298-99, 203 N.W.2d 887 (1973).
In the case at bar the majority might have considered as guidelines for the conduct of an ordinarily prudent lawyer sec. 3.4 of the ABA’s Standards for the Defense Function dealing with publication contracts4 and sec. 3.7 dealing with attorneys’ advice on a client’s anticipated unlawful conduct.5 We did not adopt these sections in Harper but they might be helpful in assessing the attorney’s representation in this case.
The ABA standards provide a good starting place, but they do not give complete guidance to the legal community to evaluate ineffective counsel claims. The ABA standards are not specific enough, and they do not address many problems that attorneys face every day, as the case at bar illustrates. Therefore the court must develop additional guidelines for the ordinarily prudent lawyer.
*250The Code of Professional Responsibility provides additional guidelines. See Barnes v. Jones, 665 F.2d 427 (2d Cir. 1981), cert. granted- U.S. -, 102 S. Ct 2902 (1982). In the case at bar, several provisions of the Code might be helpful as guidelines for the conduct of an ordinarily prudent lawyer.6
*251Unfortunately the majority opinion never refers to the ABA standards or the Code of Professional Responsibility or any other guidelines in evaluating the attorney’s conduct. Instead the majority’s evaluation is in subjective and conclusory terms.
Furthermore, the majority opinion pays no heed to the determination of the circuit court. Although the majority opinion is silent on the standard an appellate court should apply in reviewing the trial court’s holding that there was or was not a violation of the defendant’s constitutional right to effective counsel, it appears that the majority has not deferred to the circuit court. In contrast, in State v. Rock, 92 Wis. 2d 554, 563, 564, 285 N.W.2d 739 (1979), Justice Callow, writing for the court, concluded that the standard for review was whether the circuit court’s determination was against the great weight and clear preponderance of the evidence. In Rock the court said that “the trial court’s finding and conclusion that [the attorney’s] conduct . . . did not constitute ineffective counsel is not against the great weight and clear preponderance of the evidence” and that “the defendant has not demonstrated that the great weight and clear preponderance of the evidence is contrary to the trial court’s finding.” Is the majority now abandoning this standard of review ?
Determining what an ordinarily prudent lawyer would do and what this lawyer did does not necessarily answer the question of whether the conviction should be reversed. The majority concludes that “if we find that [the attorney’s] conduct was unreasonable and contrary to the actions of an ordinarily prudent lawyer, we must then determine whether such action was prejudicial to Fenel.” Supra, p. 229. See Slappy v. Morris, 649 F.2d 718 (9th Cir. 1981), cert. granted, - U.S. -, 102 S. Ct. 1748, 2005 (1982).
*252Separating the concepts of “ineffectiveness” and “prejudicial” is a difficult and perhaps futile task.7 I share the concerns expressed by Justice Heffernan in his concurring opinion. Professor Tague explains the relationship between the two concepts as follows:
“The defendant cannot meet his burden of establishing ineffective representation simply by showing that his attorney violated one of the ABA guidelines.143 In defining his burden, courts can choose between two approaches. They could make it relatively easy for the defendant to establish a constitutional violation, but refuse to reverse the conviction if the attorney’s failures were harmless error. Or, they could require the defendant to make a significant showing of prejudice caused by his attorney’s failures,144 and reverse automatically, without considering harmless error, if the defendant met that burden. DeCoster II chose the first approach. In Beasley v. United States, 145 the Sixth Circuit chose the second approach in a decision where that circuit also rejected the ‘farce’ test.
“In choosing between DeCoster IPs and Beasley's, approaches, courts must resolve two issues concerning the purpose of post-conviction review. First, should courts try to protect only the individual defendant against an unfair verdict, or should they try to prod all attorneys to provide better representation? Second, is a trial fair if the verdict appears reliable, or is it fair only if the defendant had a full opportunity to present his own case and to dispute the government’s case?
“DeCoster II focuses on the attorney’s conduct, while Beasley concentrates on the reliability of the verdict. . . .”149
*253Courts as well as commentators have struggled to establish a method for deciding cases involving claims of ineffective counsel. The DeCoster case, United States v. DeCoster, 624 F.2d 196 (D.C. Cir. 1979), is required reading, because the DeCoster opinions (DeCoster I, II, and III) set forth several divergent views on the difficult issues in ineffective assistance of counsel claims, such as standards, burden of proof, prejudice, harmless error, and when is reversal warranted.
*254Judge Leventhal’s plurality opinion in DeCoster III sets forth a standard for evaluating effectiveness of counsel, adopts an interest of justice test for reversal, and puts the burden on the defendant to show prejudice. Judge Leventhal summarizes his analysis of the issues as follows:
“In the absence of a governmental impediment to effective assistance of counsel, the court cannot lightly vacate a conviction on the basis of its own appraisal of the performance of defense counsel. The door is open, but only for cases of grievous deficiency and where the court has serious misgivings that justice has not been done.
“So "far as the present case is concerned, ultimately dispositive of the appeal are the strength of the government’s case and the failure of appellant to demonstrate a likelihood of effect on the outcome.”
“Our analytic structure permits reversal in the interest of justice, but without inappropriate rigidity. The claimed deficiency must fall measurably below accepted standards. To be ‘below average’ is not enough, for that is self-evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.” 624 F.2d at 214-15.
In contrast, Judge Robinson, in a concurring opinion in DeCoster III, puts the burden on the government to show no prejudice:
“This is the major point of deviation between the position of a majority of the court’s members and mine. In my view, the claimant before us needed only to show that his counsel fell substantially short of the standard of reasonable competence; in [the majority’s view], threatened or consummated injury therefrom is an additional required part of the showing. I believe the majority err in their approach and denude the constitutional *255right to effective assistance of counsel of a great deal of the value it was intended to have.” 624 F.2d at 262.
Judge Bazelon in a dissenting opinion in DeCoster III suggests a three-step inquiry:
1. Did counsel violate one of the articulated duties ?
2. Was the violation substantial ?
3. Has the government established that no prejudice resulted ?
Judge Skelly Wright, writing for himself and Judges Bazelon and Robinson, states in a separate opinion in DeCoster III that although the three differ on some points they agree that there are two fundamental disposi-tive principles in ineffective counsel cases:
“(1) The constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant’s diligent, conscientious advocate; and (2) where that standard is shown by the defendant not to have been satisfied, the defendant has been denied his constitutional right to counsel and his conviction must be reversed unless the Government proves beyond a reasonable doubt that the ineffective assistance of counsel was harmless. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).” 624 F.2d at 300.
In summary, I am very uneasy that the majority bows in the direction of the Harper standard but uses the “basis in reason” test and simply concludes that there was a rational basis for the lawyer’s conduct.
We must begin to address claims of ineffective representation — claims of denial of state and federal constitutional guarantees — in less simplistic and superficial terms than we have in the past or than the majority does in this case. I know that it is not easy to formulate the issues here and that the answers are even more difficult to find. Even those who have given a great deal of thought to the constitutional right to effective assistance *256of counsel have not been successful in proposing a generally accepted and readily workable model to use in cases raising claims of ineffective assistance of counsel. The model will, of necessity, evolve on a case-by-case basis. The majority opinion in this case does not, however, assist in the development of the law.
As to the state’s error in reierring to the defendant’s silence, the majority uses the correct harmless error test, but it does hot apply the test to the facts of the case. The majority never describes the state’s evidence against the defendant or the nature of the defense. The majority’s analysis is limited to comparing the number of times the state referred to the defendant’s silence to the total length of the trial. The majority says the trial took five days “and that throughout this five-day period, twenty-nine witnesses testified and numerous exhibits were introduced.” Supra, p. 238.
The facts are as follows. The trial — starting at the voir dire and ending after the jury was instructed — took four full days (approximately from 9 a.m. to 5 p.m.) and two hours of the fifth day. On the fifth day there were closing statements and instructions — no witnesses. The voir dire took one and one-half days *244of the total four full days; there were no witnesses the first day. On the first day, there was a very brief general voir dire of all the jurors in open court (39 pages in the record) and then the prospective jurors were examined individually in the judge’s chambers. The individual examination of the jurors extended through the first half of the second day. In the second half of the second day and on the third and fourth days of the trial there were 29 witnesses, 24 state witnesses, and five defense witnesses. Many state witnesses made brief appearances to describe the victim and her belongings, to tell about finding the victim’s body, to analyze the cause of death, etc.
I do not think that a body count of witnesses and a count of the number of days (full or part) from voir dire through instructions without a discussion of the nature of the testimony, of the evidence, and of the defense is an adequate analysis of whether the constitutional error was harmless beyond a reasonable doubt.
I also question the majority’s view that the constitutional validity of the “presumption of intent” instruction was decided for all cases by the Muller case. Compare Barrera v. State, 109 Wis. 2d 324, 325 N.W.2d 722 (1982), where the majority upheld a previously-held-invalid jury instruction on the basis of an analysis of the facts of the case. In Pigee v. Israel, 670 F.2d 690 (7th Cir. 1982), cert. denied - U.S. -, 103 S. Ct. 103, the seventh circuit examined the constitutionality of the challenged “presumption of intent” instruction according to the facts of that case to determine whether the instruction in the particular case posed the degree of risk found impermissible in Sandstrom. In light of Barrera and Pigee, it would appear that the proper approach to the challenged instruction is to examine the instruction in each case to determine the effect of the instruction in that case.
The federal and state courts are using a number of standards and the U.S. Supreme Court has not directly addressed the issue. See Justice White, Competency of the Profession, (ABA Criminal Justice, vol. 10, no. 1, p. 1 (Sept. 1982) (speech delivered August 10, 1982, at the ABA annual meeting).
It is not necessary to view the rational basis standard as different from the Harper standard. I would think the rational basis test could be interpreted to require the court to decide whether the reason is one upon which an ordinarily prudent attorney would have acted similarly. But the court has not applied the rational basis test in this manner. I suppose a court finds it easier to search the record for the attorney’s rationalization or to supply one for the attorney than to determine what the ordinarily prudent lawyer would do. As a result, in this case, like *248many others, the challenged counsel is questioned in the circuit court as to his conduct but there is no evidence about or discussion about the ordinarily prudent lawyer.
“3.4 Obtaining [literary] publication rights from the accused.
“It is unprofessional conduct for a lawyer, [consulted by or representing an accused to negotiate with the accused to secure, either as part of his compensation or as a condition of the employment, right to publish books, plays, articles, interviews or pictures relating to the case] prior to conclusion of all aspects of the matter giving rise to his employment, to enter into any agreement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment.”
“3.7 Advice and service on anticipated unlawful conduct.
“(a) It is a lawyer’s duty to advise his client to comply with the law but he may advise concerning the meaning, scope and validity of a law.
“(b) It is unprofessional conduct for a lawyer to counsel his client in or knowingly assist his client to engage in conduct which the lawyer believed to be illegal.”
1. SCR 20.21 A lawyer should preserve the confidences and secrets of a client.
a. Ethical consideration number 5. A lawyer should not use information in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of the client after full disclosure, such information for his or her own purposes.
2. SCR 20.22 Preservation of confidences and secrets of a client.
3. SCR 20.23 A lawyer should exercise independent professional judgment on behalf of a client.
a. Ethical consideration number 2(c) :
“If, in the course of his or her representation of a client, a lawyer is permitted to receive from his or her client a beneficial ownership in publication rights relating to the subject matter of the employment, he or she may be tempted to subordinate the interests of his or her client to his or her own anticipated pecuniary gain. For example, a lawyer in a criminal case who obtains from his or her client television, radio, motion picture, newspaper, magazine, book or other publication rights with respect to the case may be influenced, consciously or unconsciously, to a cour.se of conduct that will enhance the value of his or her publication rights to the prejudice of his or her client. To prevent these potentially differing interests, such arrangements should be scrupulously avoided prior to the termination of all aspects of the matter giving rise to the employment, even though his or her employment has previously ended.”
b. Ethical consideration number 2(f) :
“The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his or her client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the cause of his or her client or otherwise to become financially interested in the outcome of the litigation.”
*2514. SCR 20.26 Avoiding acquisition of interests in litigation.
5. SCR 20.27 (2) Limiting business relations with a client.
"143 United States v. DeCoster, supra note 10, slip op. at 11 [487 F.2d 1197 (D.C. Cir. 1973)]. See State v. Harper, 57 Wis. 2d *253543, 205 N.W.2d 1 (1973), (adopting ABA standards as partial guidelines but finding effective representation when attorney first interviewed client shortly before trial, did not review police reports or seek alibi witnesses, or move to suppress certain evidence; court did not say whether the defendant was harmed in any way by attorney’s conduct).
No matter how these concepts are viewed, we must still ask whether the defendant must prove prejudice or the state harmless error and how prejudice and harmless error are defined. Our prior cases are not completely clear, but they can be read to put the burden of proof of prejudice on the defendant.
“144 A finding that the attorney’s representation was a ‘farce’ usually assumed that the defendant had been prejudiced. See, e.g., United States ex rel. Mathis v. Rundle, 394 F.2d 748, (2d Cir. 1968), overruled on other grounds by Moore v. United States, 432 F.2d 730, 735 (3d Cir. 1970). The ‘reasonable competency’ test requires that the defendant prove he was prejudiced by his attorney’s representation. See, e.g., United States ex rel. Johnson v. Johnson, 531 F.2d 169 (3d Cir.) (no ineffective representation when the defendant had not shown how unlocated witness could have helped), cert. denied, 425 U.S. 997 (1976).
«145 491 F.2d 687 (6th Cir. 1974).
«149 This difference between DeCoster II and Beasley is illustrated by Woody v. United States, 369 A.2d 592 (D.C. 1977), where the defense attorney failed to get defendant’s bank account record, failed to explain the defendant’s possession of money, failed to file certain pretrial motions, failed to object to certain misstatements in the prosecution’s summation, failed to request or object to jury instructions and neither adequately consulted with the defendant before trial nor attempted to find a favorable eyewitness. Nonetheless, defense counsel’s representation was not ineffective, because the defendant failed to show how any failure had eliminated a substantial defense. See also Bruce v. United States, 379 F.2d 112, 116 (D.C. Cir. 1967).” Tague, The Attempt to Improve Criminal Representation, 15 Am. Cr. L. Rev. 109, 136-37 (1977).