Playing To Win

The Presumption of Guilt

The Hidden Logical Barrier to Innovation

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I was recently involved in a conversation that I have had so many times that I have stopped trying to count. It featured a CEO expressing chagrin to his leadership team about innovation. Despite the company setting innovation as a key goal, and investing plenty in it, and watching projects advance through the various stages of the innovation process, innovations seemed to get killed in the final stages, often for reasons that weren’t entirely obvious. The CEO and team were really stuck as to how to remedy the problem. I have a theory on why it happens and how to remedy it and am dedicating my 24th Year II Playing to Win/Practitioner Insights piece to The Presumption of Guilt: The Hidden Logical Barrier to Innovation. You can find the previous 76 PTW/PI here.

The Presumption of Innocence

In modern democratic nations, a cornerstone of the legal system is the presumption of innocence, whereby a citizen charged with a crime is presumed innocent unless found to be guilty beyond a reasonable doubt. In fact, this principle has been ensconced since 1948 as Article 11.1 of the United Nations Declaration of Human Rights:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Though apparently, this human right only applied to the male of the species. How sensibilities have changed since 1948!

It is because of this legal principle that successful defendants are mistaken when they claim that they were declared innocent by a judge or jury. Courts don’t opine on innocence. Their only two potential verdicts are guilty or not guilty, and that is because of the presumption of innocence. The court is charged with the task of determining whether the presumption of innocence can be surmounted by the weight of evidence — in which case the defendant is declared to be guilty — or cannot be surmounted — in which case the defendant is declared to be not guilty.

This all, of course, begs the question: why is this presumption of innocence so important that it is considered a cornerstone of any well-functioning justice system? Why not be neutral or presume guilt — until proven innocent? The problem is that the presumption of guilt (or even neutrality) puts on almost impossible burden on the defendant. The state is strong and has resources far beyond that of the individual. And often, regardless of resources, it is entirely impossible for a defendant to prove innocence.

Let’s consider the (entirely hypothetical) example of my next-door neighbor getting murdered in his bed in the middle of the night and the police deciding that as his neighbor, I was the most likely to have committed the crime because the neighbor and I had battled one another on a building permit issue a year earlier. Imagine if I had to prove my innocence — beyond a reasonable doubt. Let’s say my wife was away at an out-of-town board meeting and I was alone in the house, also sleeping in my bed at the time of the murder. There would simply be no way for me to prove my innocence. I could argue that it was implausible: I had nothing against the victim, no motive, no history of violence, and was sleeping at the time. But without someone to corroborate that I was asleep in my house during the time of the murder, my argument would not rise to the standard of ‘beyond a reasonable doubt’ and I would be found guilty.

The presumption of innocence flips the situation 180 degrees. The prosecution would have to find the murder weapon in my possession, or my fingerprints at the scene, or security cameras on the street showing me leaving my house and returning to it around the time of the murder, or me confiding in a third party that I had committed the crime. Without any of the above, the presumption of innocence wouldn’t be surmounted, and I would be found not guilty.

Let’s take it even further and assume there was no presumption of innocence for future crimes. Logically strange as this may seem, it happens to have been the premise of the 2002 Stephen Spielberg/Tom Cruise movie Minority Report. Cruise’s character, John Anderton, is put in the position of having to prove his innocence in the commission of a future murder — i.e., prove that he won’t commit a murder at some point in the future. Of course, since it is a Tom Cruise character in a Stephen Spielberg movie, he succeeds against all odds. But outside the realm of the silver screen, it would be impossible to prove beyond a reasonable doubt that you won’t commit a crime that hasn’t even happened yet.

Presumption of Guilt

But it is arguable that this is exactly the standard to which innovation is held. There is an implicit presumption of guilt and the need to prove that the innovation will succeed in the future, otherwise it will be declared to be guilty and, therefore rejected.

In business, the status quo generally enjoys the presumption of innocence — except in the minority of cases in which the business in question is in obvious distress. Generally, the status quo is working and there is a track record of data to support that assessment. And the presumption is that next year’s results will be a lot like this year’s, only a little (or sometimes, a lot) better. A lot of hard work would be required to build and argue a case that overcomes that presumption of innocence.

In contrast, any innovation is implicitly presumed guilty until proven innocent beyond a reasonable doubt. There is no track record for it because it is new — and if it wasn’t new, it wouldn’t be an innovation in the first place. Investment in bringing the innovation to market generally isn’t in the budget, so it must push aside things that are already in the budget to be allocated the investment it needs. It must prove that it is worthy by proving that its innocence.

The status quo doesn’t have to prove it is innocent. Only innovation does. The fundamental problem for an innovation to prove that it is innocent is, as I have argued previously, that all of the world’s data is from the past. Unless, apparently, you are a Tom Cruise movie character, you can’t prove something new about the future that hasn’t already happened in the past.

Reversing the Presumption

The key to unlocking innovation is to reverse the presumption: innovation is innocent until proven guilty beyond a reasonable doubt. Under this construction, the status quo must play the role of the prosecutor and prove that the innovation is guilty beyond a reasonable doubt. The innovation asserts its case, laying out the future that it imagines is plausible and explains the logic that buttresses the plausibility. The onus is on the status quo to demonstrate beyond a reasonable doubt that the innovation’s logic is flawed — e.g., the proposed economics are unrealistic, customers haven’t shown a hint of caring about the unique selling features of the innovation, competitors already have a lead on us in the proposed area, etc.

If the status quo can do so, then the innovation is guilty. If it can’t, then the innovation is not guilty, and the organization should invest. Reversing the presumption will provide the innovation, which is weak in comparison to the status quo, with the kind of fighting chance that a defendant has against the state.

Practitioner Insights

If you want to give innovation a chance in your organization, you need to reverse the presumption. Innovation needs to be presumed to be innocent — i.e., worthy — until proven guilty — i.e., a risky bust — rather guilty until proven innocent.

If you are in the position of judging an innovation as head of R&D or CEO or board member, place the burden of proof on the negative case, not on the affirmative case. Make the standard of proof the likelihood of failure beyond a reasonable doubt. Do not make it likelihood of success beyond a reasonable doubt because that is what ends up frustrating leaders about lack of innovation.

If you are in the position of advocating an innovation, focus on the logic for it. Build a case for why the logic makes sense. Insist that those responsible for reviewing and either approving or rejecting further investment in the innovation successfully counter the logic before you accept their judgment. Refuse to be drawn into proving innocence with data about the future; data which simply does not yet exist, not because you haven’t done the work to collect it, but because there is never data available about the future.

Reversal of the presumption won’t flawlessly solve the problem of too little innovation getting through the gauntlet. Just as too little gets through with the presumption of guilt, too much will get through with the presumption of innocence. But as with the legal domain, which has fully adopted the presumption of innocence, I view the latter to be a smaller problem than the former. In a business environment in which companies that don’t innovate are doomed to wither away, companies need to lean into not away from innovation.

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Roger Martin

Professor Roger Martin is a writer, strategy advisor and in 2017 was named the #1 management thinker in world. He is also former Dean of the Rotman School.