The posture of this appeal can be understood from the accurate recitation of the facts found in Judge Beasley’s dissenting opinion.
Defendant is able to invoke the bar against *349prosecution for the Brown murder found in § 8 of the repealed criminal sexual psychopath statute. MCLA 780.501 et seq.; MSA 28.967(1) et seq., repealed by 1968 PA 143. Section 8, in effect when defendant was committed as a criminal sexual psychopathic person after being charged with the Brown murder, stated:
"No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.”
Notions of fairness embodied in both the constitutional provisions against ex post facto laws, US Const, art I, § 9; Const 1963, art 1, § 10, and the due process clauses, US Const, Am V and XIV; Const 1963, art 1, § 17, prevent the repeal of the criminal sexual psychopath statute in 1968 from eliminating the defense against prosecution available to defendant when he was committed. In re Canfield, 98 Mich 644; 57 NW 807 (1894), cf. People v Reagan, 395 Mich 306; 235 NW2d 581 (1975).
This Court’s opinion in People v Smith, 57 Mich App 556; 226 NW2d 673 (1975), does not authorize the renewed attempt to prosecute defendant for the Brown murder. Although Smith,1 for very questionable reasons, held that a defendant could not invoke the bar to prosecution in § 8, the con*350text of the appeal in Smith makes it inapplicable here. In an action brought on behalf of defendant Smith, the Wayne County Circuit Court had declared portions of the former criminal sexual psychopath act unconstitutional. When this Court decided Smith, a prosecution for murder had been initiated and the question was what effect should be given to the circuit court ruling on the act. The opinion of this Court stated:
"The decision by the three-judge Wayne County Circuit Court declaring the statute in controversy in this case unconstitutional is also fully retroactive. Thus, the statute was void on the date it was passed.” 57 Mich App at 563.
Although we cannot subscribe to the view that a declaration of unconstitutionality, because certain provisions of an act cannot survive equal protection scrutiny, deprives the entire act of any effect, this case does not require that we take issue with the holding in Smith.
In People v Chapman, 301 Mich 584; 4 NW2d 18 (1942), the Supreme Court reviewed various provisions of the criminal sexual psychopath act and found it constitutional. Surely an unreported decision of a circuit court is no basis for disregarding the Supreme Court’s decision in Chapman. We see no reason why defendant, committed under an act held constitutional by this state’s highest court, should later be denied the protection of § 8 because a circuit court, in an action in which he is not involved, finds certain provisions of the act constitutionally offensive.
Defendant, institutionalized for a considerable period under the act, can invoke the bar against prosecution in § 8. Fairness prevents telling defendant that the favorable provisions of the act *351under which he was committed never existed. In People v Reagan, supra, defendant sought to hold the prosecutor to his agreement that he would not prosecute defendant if defendant took and passed a lie detector test. The court held that the prosecutor was bound to his "pledge of public faith”.
"Law enforcement processes are committed to civilized courses of action. When mistakes of significant proportion are made, it is better that the consequences be suffered than that civilized standards be sacrificed.” 395 Mich at 319.
While § 8 of the repealed act does not prevent prosecution of defendant for the Withrow murder, People v Theodore Williams, 66 Mich App 521, 529-530; 239 NW2d 653 (1976), his due process right not to be prejudiced by the delay between the date of the offense and the date of trial prevents the stale prosecution for this crime. In People v Hernandez, 15 Mich App 141, 147; 170 NW2d 851 (1968), this Court stated the applicable test:
"Where some prejudice is shown, as it is shown in this case, it can be permitted and not be the basis for a finding of lack of due process only where the following elements are present and shown clearly and convincingly to the trier of fact: (1) when the delay is explainable, (2) when it is not deliberate, (3) where no undue prejudice attaches to the defendant.” (Emphasis in original.)
See, also, People v Fiorini, 53 Mich App 389; 220 NW2d 70 (1974), On Rehearing, 59 Mich App 243; 229 NW2d 399 (1975).
The parties do not dispute that the defendant has suffered some prejudice from the eight-year delay. The witnesses who testified to the defendant’s confessions admitted that they could not now *352recall many of the surrounding circumstances. One of the psychiatrists who examined the defendant and testified during the hearing on defendant’s commitment as a criminal sexual psychopath is now deceased. We must balance this prejudice to the defendant against the explanation for the delay to determine whether the defendant’s right to a fair trial has been unduly hindered.
The dissent accurately notes that the defendant was never charged with the Withrow slaying until 1975, but fails to recognize that failure to charge the defendant also prevents the prosecutor from excusing the delay by the statutory bar in MCLA 780.508; MSA 28.967(8):
"No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.” (Emphasis added.)
Having successfully avoided the statutory bar, the prosecutor cannot now claim that the eight-year delay was unavoidable; on the face of the statute, prosecution could have been obtained at any time. The prosecutor’s only other explanation for the delay in essence is "as long as the defendant was confined, there was no need to proceed”. Given the strength of a case which derives from the defendant’s detailed confession, I can agree that the prosecutor had little to lose from the delay. However, a defendant’s incarceration or commitment for treatment due to conviction or other proceedings will rarely justify an otherwise unexplained prosecutorial delay, and we do not find this case to *353merit an exception to that rule. Smith v Hooey, 393 US 374; 89 S Ct 575; 21 L Ed 2d 607 (1969).
In balance, the prejudice suffered by the defendant is undue and unjustifiable. Witnesses to his confession could not recall many circumstances crucial to deciding whether or not the confession was voluntary. More importantly, one of the psychiatrists who examined defendant in 1967 and testified at his CSP hearing is now deceased. The dissent’s argument that the transcript of the 1967 hearing cures any prejudice neglects the fact that the issue at defendant’s criminal trial will not be the same as the issues at the CSP hearing. The record shows that the prosecutor argued in 1967 that the defendant was insane and thereby not subject to CSP treatment. The recorded testimony of the defendant’s witnesses was elicited to rebut that argument, not advance it, and may be of little value at the criminal trial. Moreover, statements from a cold transcript will have less impact than those of a live witness. I would hold that this unjustified prejudice to the defendant’s defense precludes a trial on the Withrow charge.
Reversed.
M. F. Cavanagh, P. J., concurred.Contrary to Judge Beasley’s assertion, the Supreme Court’s order at 396 Mich 955 (1976), did not affirm this Court’s decision in Smith, 57 Mich App 556; 226 NW2d 673 (1975). After granting leave to appeal, People v Louis M Smith, 394 Mich 824 (1975), the Supreme Court, with Justices Williams, Levin and Kavanagh dissenting, declined to decide the issues defendant raised. Instead, the matter was remanded to the trial court for further proceedings and defendant was told that, if convicted below, he could raise on direct appeal to the Supreme Court the issues presented by his pending appeal.