Does a defendant have to waive the former jeopardy defense if they failed to assert it before trial?

Unlike defenses based on procedural or formal defects, affirmative defenses, such as appellants' PRA defense, may not be cured by prosecutorial action. They continue to operate as defenses regardless of the regularity of the prosecutor's conduct or of the indictment. Thus, the Advisory Committee Notes provide that "the defendant at his option may raise by motion before trial" "such matters as former jeopardy, former conviction, former acquittal, statute of limitations, [and] immunity." See note 3 supra (emphasis supplied). These matters are in the nature of affirmative defenses, as is appellants' PRA defense. We see no reason to distinguish the PRA defense, and conclude that the PRA defense is a permissive pretrial matter that the defendant may, but need not, raise by motion before trial. See United States v. Hahn, 381 F.Supp. 1311, 1313 (E.D.Mich.1974). It follows that appellants did not waive the defense by failing to assert it prior to the motion date but before the conclusion of their trial.