(concurring specially) — I have signed and concur in the majority opinion. In my judgment it is a realistic and accurate evaluation and application of the law, particularly as construed presently by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966). My purpose in concurring specially is not to detract from the majority decision in any way, but to place in proper perspective the basis of my concurrence. My specific concern is with the majority’s disposition of defendant-Belk-nap’s second assignment of error, viz., the propriety of allowing into evidence testimony of the sheriff’s captain concerning alleged admissions made by Belknap during inter*291rogation. I wish to discuss whether Belknap ought to be found to have waived his constitutional rights prior to making the alleged admissions, and whether in any event the matter of his waiver ought to provide a basis for a new trial under the facts in the instant case.
As indicated by the majority, the evidentiary dispute over whether Belknap did or did not waive his constitutional rights may be simply and aptly characterized as a “swearing contest” in which Belknap says he did not waive his rights and the captain says he did. There is no corroborating evidence for either side except whatever implications or presumptions may be drawn from the silence of a second officer who was present during Belknap’s interrogation but was not put on the stand as a witness by the state. Under these circumstances, I am convinced the United States Supreme Court has made it quite clear that it cannot be said Belknap waived his constitutional rights. Miranda v. Arizona, supra. Although quoted in part by the majority, the following passage from Miranda is set forth here to demonstrate the inexorability of the foregoing conclusion:
If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. . . . This Court has always set high standards of proof for the waiver of constitutional rights . . . and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually •obtained. . . .
*292Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.
Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation. 384 U. S. at 475-76. (Italics mine.)
The thrust of the foregoing commentary is plain and unambiguous. There is a heavy burden upon the state to prove waiver if statements obtained during incommunicado interrogation, such as in the instant case, are to be admissible as evidence. The prosecution did not meet this burden with respect to defendant-Belknap’s alleged in-custody admissions and a new trial must therefore be granted.
The decision of the court in Miranda v. Arizona, supra, is the law of the land. It is, or should be, a truism of absolute quality that state court judges, and others, are duty-bound to uphold and apply the law as construed by the court. Even so, in my judgment some comment is appropriate relative to what I believe are some disturbing jurisprudential and societal ramifications and consequences of Miranda. For although I must and do support the decision judicially, I disagree with it, at least philosophically or in an essentially academic sense.
As state law is affected more and more by a seemingly ever-expanding interpretation and application of the fed*293eral constitution, some may tend to forget the legal niceties upon which intervention of the United States Supreme Court is predicated in matters of state criminal law administration. The usual theoretical legal basis, as in Miranda, for applying the principles of some of the federal constitutional amendments to the states is the “due process” clause of the Fourteenth Amendment. The Miranda rules are made applicable to the states because of a composite, majority judgment of the members of the Supreme Court that such rules must be applied to accord “due process of law” for individuals accused of crimes.
However, there is nothing thaumaturgic about the term “due process of law.” Its substance does not spring from timeless oracles. Rather, the words “due process of law” are (to paraphrase a general philosophical observation of Mr. Justice Holmes) merely the “skin of ideas.” In very large measure due process of law, in my considered opinion, represents personal value-judgments made by different jurists at different times under different circumstances. According reasonable and rational validity to the foregoing postulates, there should be no inference of contumacy or heresy in critically analyzing and evaluating any and all judicial declarations which ostensibly or purportedly provide additional substance to the shifting and varying content of those fundamental social values characterized by the court as “due process of law.”
When one speaks of the rights of society, he is in a sense speaking of the composite or collective rights of individuals. But this does not mean that the composite rights of individuals as a social body can be protected, as the Miranda decision would appear to suggest, by protecting the rights of individuals as discrete entities or beings. Equating the sum of the parts with the whole — and vice versa — may work well in the field of mathematical logic, but this is not necessarily so in the area of human relationships. The interests, needs, wants, and values of the group often differ from and conflict with those of its component parts, and cognizance should be taken by the judiciary of these differ-*294enees and conflicts when developing and enunciating due process rights.
Whenever an individual is accused of committing a crime, two diametric forces are set in motion. On the one hand there are the rights which society affords individuals as individuals to protect them from overbearing and oppressive actions by government. On the other hand there are the rights which society reserves for itself, that is, for individuals as a whole, in the interest of protection and security from attack by individual transgressor members of society. In a sense, each is the obverse of the other. Obviously, neither set of rights can be given absolute, unqualified application without denegating the other. Thus, it is a prime function of the law and the courts to effect a rational accommodation of these two competing social forces so that both are accorded reasonable effectiveness.
Viewed realistically, courts have traditionally reconciled or balanced competing social forces in making value-judgments as to which should, under particular circumstances, be given the greater effect. Perhaps the judicial function, in Benthamite-Mill terminology, seeks to ascertain and promote “the greatest happiness of the greatest number.” But, in the criminal law field it seems to me that courts are now required to overlook or ignore this legal balancing mechanism and instead concentrate on maximizing the individual rights of criminal defendants.
In the instant case defendant-Belknap was convicted of attempting to escape from the Spokane County jail. He was in the jail as a transferee from the Washington State Penitentiary. He had been confined in the penitentiary because of a grand larceny conviction. It would seem apparent that society is vitally interested in seeing that criminal offenders in custody, such as defendant, do not escape confinement. Not only is society interested in being protected from further depredations of such offenders, but society is also interested in the rehabilitation of criminal offenders. Yet it is precisely these vital social interests which the Supreme Court’s decision in Miranda now seems to frustrate. We are *295obliged to grant a new trial to a convicted felon whom no reasonable man can doubt attempted to escape jail. This action is required, not because statements which he allegedly made were unreliable or untrue, not because there is even a slight suggestion he was improperly treated, but because the state has not met what in my opinion is an inordinately heavy burden of showing that what are termed the “Miranda warnings” were given and that defendant-Belknap waived his rights pursuant to these warnings.
Due process considerations encompass not only fundamental individual rights but fundamental societal rights as well. It is as judicially inappropriate to ignore the one as it is to ignore the other. In my judgment, the Supreme Court in Miranda gave little significant attention to the societal aspects of due process.5 It seems to me quite likely that Miranda will substantially increase the difficulty of obtaining convictions. This was emphasized in the dissent of Mr. Justice White. 384 U.S. at 541. Perhaps any such worsening of the interests of organized society would not be objectionable if it were necessary to prevent individuals accused of crimes from being subjected to oppressive, inquisitorial interrogation. The fact of the matter is, however, that there is little if any statistical data or other comprehensive, reliable information which suggests that such improper interrogations take place on a wide-ranging scale in all police departments throughout the land. Obviously, some policemen in some police departments in some cities under some circumstances violate generally-recognized standards of fair play. But, when and where violations take place, there are better ways of dealing with them than reversing criminal *296convictions. Exercise of contempt of court powers, establishment of high level state commissions on criminal law administration, and provisions for effective civil redress would serve far better as modes of “policing the police” than defeating governmental or society’s efforts to protect itself from individual transgressors.6
There is a second aspect of Miranda which also troubles me deeply. My reading of the case indicates that failure to meet its strict requirements is per se harmful error and thus grounds for reversal.7 In other words, the defendant has a right to a new trial, regardless of the impact of such error on his first trial. In my judgment, this is an illogical and inappropriate juristic assumption. Appellate courts constantly perform the function of evaluating harmful effects which improper evidence may have had on civil trials and there is no reason why they should not be competent and trusted to perform this function as to criminal trials. See State v. Wells, 72 Wn.2d 492, 500 n.4, 433 P.2d 869, 873 n.1 (1967) (concurring opinion). This was the approach apparently endorsed and employed by the Supreme Court when it decided Crooker v. California, 357 U.S. 433 (1958) (“sum of the circumstances” test) and Betts v. Brady, 316 U.S. 455 (1942) (“totality of the evidence” test), and I find it regrettable indeed that the court has now chosen to disregard the wisdom of the judicial approach of these cases.
That results under a “harmful per se” rule are illogical and undesirable is graphically illustrated in the instant case. The physical evidence and testimony of other cellmates introduced at defendant-Belknap’s trial would be enough upon retrial to convince any jury of reasonable minds beyond a reasonable doubt that the defendant attempted to escape jail. The prejudicial effect on the trial of *297the interrogating officer’s statements concerning alleged admissions of Belknap was insignificant. Surely it would be more rational to hold judicially that, under the test suggested in Chapman v. California, 386 U.S. 18, 21-24 (1967), no new trial is necessary because the error which resulted from admission of the officer’s statements into evidence was harmless beyond a reasonable doubt. See A. Holtzoff, Shortcomings in the Administration of Criminal Law, 17 Hastings L.J. 17 (1965).
I suppose it is rather superfluous to add that, were I free to choose, I would not follow the majority’s decision in the instant case but, on the basis of a rule of harmless error, would instead affirm defendant-Belknap’s conviction. But, I am not free to choose, for the Supreme Court has exercised its discretion. A choice has been made by the court striking a balance between liberty and order and between the one and the many. Any discretion or choice which I may have had has been preempted. Thus, the majority opinion in the instant case aptly states the law, and I must fully, albeit unhappily, concur.
May 31, 1968. Petition for rehearing denied.
It is ironic to me that the Supreme Court, which has so studiously ignored this concept of due process in criminal cases, has carefully applied it elsewhere. For example, in Zemel v. Rusk, 381 U.S. 1, 14 (1965), a case concerning restrictions on travel to Cuba, Mr. Chief Justice Warren, author of Miranda, stated that the right to travel is not absolute under the Fifth Amendment because “[t]he requirements of due process are a function not only of the extent of the governmental restriction imposed, but also of the extent of the necessity for the restriction.”
See reference to alternative methods of regulating police activities in R. Finley, Who is on Trial — The Police? The Courts? Or the Criminally Accused?, 57 J. Crim. L.C. & P.S. 379 (1966).
The court stated in Miranda, 384 U.S. at 479: “[U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Italics mine.)