That's the verdict from Ryan Davidson, a lawyer who focuses on the hypothetical legal ramifications of comic book tropes, characters, and powers at his blog, Law And The Multiverse.
"It depends on how the disease works," he told The Huffington Post. "If zombies are effectively unconscious, then they would be incapable of performing voluntary actions and thus immune to criminal liability (or civil liability, for that matter). The zombies in the most recent 'I Am Legend' movie appear to be fully conscious, if perhaps a bit aggressive, so they could potentially be found liable. But in most others, probably not."
Daily said that a zombie apocalypse would be a mess for courts because the law sees consciousness as a black and white issue.
"From the law's perspective someone is either fully alive or fully dead; the law doesn't recognize the undead as a separate category (they are fictional, after all)," he told HuffPost by email. "I don't know that a separate category is necessary, though. In most zombie fiction, the zombies are either 'irreversibly deceased but reanimated corpses' or they are still-living humans whose behavior has been affected by supernatural means or a virus of some kind."
Davidson said there is also the question of whether zombies would have legal rights if brought to trial. He said it depends on how it reached the undead state.
"If 'zombies' are re-animated corpses, then no. The dead have no rights," he said. "But if 'zombies' are living people infected with some kind of virus, like in '28 Days Later,' then still have all the same rights they did before infection.
"If the crimes were committed while they were a zombie, and if the zombie condition causes legal insanity (basically defined in many states as not knowing what you are doing and not knowing that what you are doing is wrong), then they would have an insanity defense, even if they were later cured," he said. "Some crimes have statutes of limitations that might run, but murder has no statute of limitations, and that's the crime most people are going to care about."
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